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(영문) 서울고등법원 2018.02.01 2016나2026707

배당이의

Text

1. The remainder of the judgment of the court of first instance, excluding the dismissed part of the lawsuit, shall be revoked, and an objection corresponding to the revoked part.

Reasons

1. Basic facts

A. The Plaintiff and G, and the Defendant B, etc. 1) The Plaintiff is a F1,447.3m2 (hereinafter “instant land”) in Nam-gu Incheon Metropolitan City, which was owned by the Plaintiff.

In the course of constructing a new building on the ground, the provisional attachment registration, etc. of the instant land was cancelled and the remaining construction was insufficient, and around June 2002, G and Defendant B borrowed KRW 2.3 billion from G and Defendant B. (2) The Plaintiff and K (Plaintiff’s wife) proposed to cancel all the provisional attachment registration, etc. of the instant land on the premise that “2.3 billion won is borrowed,” and set up the first priority collective security right, superficies and provisional registration of ownership transfer claim, and change the name of the owner of the building under construction on the instant land into G and Defendant B. In the event of failure to perform this, the owner of the building under construction on the instant land was changed to G and Defendant B. The agreement on June 20, 2002, stating that “The principal, interest (48% per annum), damages (10% of the principal) and damages (10% of the principal) shall be paid.”

3) Around July 2, 2002, H agreed to lend KRW 300 million to the Plaintiff out of the above KRW 2.3 billion with G and Defendant B. On or around July 2, 2002, the Plaintiff and K issued a promissory note of KRW 450 million at a face value with the addressee H. 40 million. G and Defendant B, around July 2002, revoked all restrictions on provisional seizure, etc. on the instant land by repaying the Plaintiff’s debt and KRW 264 million received from H (the amount calculated by deducting their own money and KRW 36 million from KRW 30 million).

B. The same year as to the instant land on July 2, 2002 as security for loans claims against G, H and Defendant B, including the principal registration based on the establishment of a right to collateral security and provisional registration on the instant land.

6. 21. The following establishment registration of mortgage was completed in the same order on the grounds of the contract to establish a mortgage:

① The Plaintiff, the mortgagee, the Defendant B, and I (Defendant B), the maximum debt amount of KRW 1.65 million (hereinafter “instant collateral security”). ② The Plaintiff, the mortgagee of the right to collateral security, and Defendant D G.