근저당권설정등기 말소등기
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. Facts of recognition;
A. C (the wife of the Plaintiff) concluded a sales contract on behalf of the Plaintiff on September 24, 2005 with respect to the land of this case owned D as KRW 140,00,000,000, and the down payment of KRW 14,000,000 on the date of the contract and the balance of KRW 126,00,000 shall be paid on November 5, 2005. The land of this case is located within the land transaction permission zone and cannot complete the registration of ownership transfer under the name of the Plaintiff. Accordingly, it concluded a sales contract (the instant sales contract) with the effect that the provisional registration is completed first, and the down payment of KRW 14,00,000 was made to E on the same day.
B. C received KRW 129,000,000, which was withdrawn by the Defendant as a check on November 3, 2005, and paid the balance of KRW 126,000,000 among them.
On the other hand, regarding the instant land on the same day, 140,000,000 won with maximum debt amount, D, debtor D, and the registration of the establishment of a mortgage (hereinafter “registration of the establishment of a mortgage of the instant case”) around the Defendant was completed.
C. The instant land was revoked in the land transaction permission zone around January 31, 2009, and the Plaintiff completed the registration of ownership transfer on September 28, 2012.
[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 2-1, Gap evidence 3, 6-3-3, Eul evidence 4 and 11-3, and the purport of the whole testimony and pleadings of Gap's witness E in the first instance trial
2. Judgment on the parties' arguments
A. The plaintiff's assertion 1 of the party's assertion is merely a withdrawal of KRW 129,00,000, which was remitted to the defendant by C on November 3, 2005, and delivered to C as a check, and not a lending to C.
Even if not, C repaid all the loans owed to the Defendant.
Therefore, the registration of the establishment of a neighboring mortgage of this case is null and void because there is no secured debt.
At the time of the Plaintiff’s purchase of the instant land, the instant land falls under the land transaction permission zone, and thus, it was not possible to conclude a provisional registration of ownership transfer registration or ownership transfer registration claim under the Plaintiff’s name.