근저당권말소
1. Revocation of the first instance judgment.
2. The defendant shall have 3/7 shares, 3/7 shares, 2, and . of each real estate listed in the separate sheet.
1. The reasoning for this part of the judgment of the court is the same as that of the corresponding part of the judgment of the court of first instance, and thus, this part is cited by the main text of Article 420 of the Civil Procedure Act
2. The plaintiffs' claim summary of the right to collateral security of this case did not exist, and even if the existence of the secured claim is recognized, the extinctive prescription of July 8, 1993, which was completed on July 8, 2003, which was the date of the contract to establish the right to collateral security of this case.
Therefore, the defendant is obligated to implement the procedure for cancellation registration of the establishment registration of the neighboring mortgage of this case to the plaintiffs.
3. Determination
A. The existence of the instant secured claim is a mortgage established by setting only the maximum amount of the secured claim and reserving the determination of the obligation in the future (Article 357(1) of the Civil Act), which is established for the purpose of securing a certain limit from a continuous transactional relationship to a certain extent. As such, there must be a legal act establishing the secured claim of the instant secured claim separate from the act of establishing the secured claim. The burden of proving whether there was a legal act establishing the secured claim of the secured claim at the time of the establishment of the secured claim is the part of claiming its existence.
(Supreme Court Decision 2009Da72070 Decided December 24, 2009). While the Defendant asserts that there exists a claim for a loan of KRW 40 million to E, which is the secured claim of the instant right to collateral security, in light of the following circumstances, it is difficult to believe that part of the testimony by the witness G of the first instance court, which seems consistent with the Defendant’s argument, is difficult to recognize the existence of the secured claim by only the entry of the evidence No. 2-1 (written confirmation) of the evidence No. 2, and there is no other evidence to acknowledge the Defendant’s assertion.
Therefore, the defendant's argument is without merit.
The witness G of the first instance court shall clarify the circumstances, financial data, etc. in which the witness and E borrowed KRW 40 million from the defendant.