부당이득반환
1. Revocation of a judgment of the first instance;
2. The plaintiff's claim is dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
1. Basic facts
A. On June 14, 2012, the Plaintiff registered the establishment of the right to collateral security against the Plaintiff, the maximum debt amount of which was KRW 98,400,00, and the creditor’s right to collateral security against the Defendant (hereinafter “mortgage”).
B. On June 15, 2012, the Plaintiff borrowed KRW 108,000,000 as a house security loan (hereinafter “instant security loan”) with a total of KRW 82,000,000 as a loan of KRW 26,000 (hereinafter “instant credit loan”).
C. On September 19, 2012, the Plaintiff filed an application for individual rehabilitation with the Daegu District Court No. 2012 Congress 64484, and the said court decided to commence individual rehabilitation proceedings on January 30, 2013.
On June 27, 2013, the Plaintiff sold the instant real estate, paid KRW 98,400,000, which is the maximum debt amount of the instant right to collateral security, to the Defendant, and cancelled the registration of establishment of the instant neighboring real estate.
[Ground of recognition] Facts without dispute, Gap evidence 2, 8, Eul evidence 1 to 3, 6, 7 (including additional numbers), the purport of the whole pleadings
2. The assertion and judgment
A. The gist of the Plaintiff’s assertion is that when the Plaintiff pays the instant collateral loan to the Plaintiff, the Defendant may terminate the instant collateral security by additionally repaying not only KRW 82 million, but also KRW 16.4 million, which is equivalent to 20% of the amount of the instant mortgage loan, and the said KRW 16.4 million was appropriated as part of the interest on the instant mortgage loan and the credit loan.
Accordingly, the Plaintiff fully repaid to the Defendant KRW 98,40,000 ( KRW 16,400,000).
However, even though the credit loan debt of this case is not included in the secured debt of this case, the defendant, only if it is required to pay the credit loan of this case, shall pay the plaintiff with the cancellation of the mortgage of this case. Thus, the defendant shall pay the same amount.