채무부존재확인
1. The Defendant shall pay to the Plaintiff KRW 100,00,000 and the interest rate of KRW 15% per annum from October 19, 2017 to the date of full payment.
1. Basic facts
A. On August 14, 2014, the Plaintiff is the owner of a ship listed in the separate sheet (hereinafter “instant ship”). On January 12, 2016, the Defendant is the mortgagee who completed the registration of establishment of a collateral security (hereinafter “registration of establishment of a collateral security”) with respect to the instant ship, the maximum debt amount of KRW 150 million is KRW 150 million due to a contract establishing a collateral security (hereinafter “registration of establishment of a collateral security”) on January 12, 2016.
B. D and E lend a total of KRW 15,00,000,000 on August 7, 2015, and KRW 150,000,000 on August 8, 2015, to the Plaintiff, and completed the registration of creation of a mortgage over the instant vessel of KRW 150,000,000 on August 10, 2015.
C. On December 23, 2015, the deceased F, the former representative director of the Plaintiff, transferred the Plaintiff Company to D and E, and D was appointed as the Plaintiff’s director on December 23, 2015. On December 28, 2015, F drafted a letter of commitment to the effect that “When changing the name of the Plaintiff Company D, F is liable to F even if any obligation exists prior to the change of the name, such as credit purchase amount, accounts payable, obligations under the name of the Plaintiff, promissory note issuance, advance payment, national tax, local tax, etc.”
The Defendant applied for a voluntary auction based on the instant right to collateral security, and received dividends of KRW 100 million as a mortgagee in the auction procedure.
[Ground of recognition] Facts without dispute, entry of Gap evidence Nos. 5, 6, 7, and 11, the purport of the whole pleadings
2. The parties' assertion
A. Since the Plaintiff’s assertion F transferred the Plaintiff Company to E and D at will, even though the secured debt was not available, the registration of the establishment of the establishment of the mortgage of the instant case is null and void.
However, on March 28, 2017, the Defendant applied for a voluntary auction based on the instant invalid collateral security, and received dividends of KRW 100 million as a mortgagee at an auction procedure around March 28, 2017.
Therefore, the defendant's dividend amounting to KRW 100 million, which the plaintiff received based on the invalid right of collateral security, and its related thereto.