Main Issues

In cases where the Defendant provided real estate owned by the Defendant as a collateral to the Plaintiff Bank and provided money of 200 million won to the Plaintiff Bank according to the agreement with the Nonparty Company, and received KRW 100 million out of the loan, but the Defendant was subjected to deception from the representative director of the Nonparty Company, and the Defendant could refuse to implement the registration of establishment of mortgage on the ground of such defect

Summary of Judgment

In accordance with the agreement with the non-party company, when the defendant provided the plaintiff bank with real estate owned by the defendant as a collateral and received a payment guarantee from the plaintiff bank, and 200 million won was granted from the Korean Investment Trust using it, whichever was later, 100 million won was delivered to the defendant, the defendant cannot cancel the mortgage contract between the plaintiff and the defendant within the scope of the above. Therefore, even if there was a defect that the defendant expressed his intent of deception from the representative director of the non-party company as to the debt amount of 90 million won used by the non-party company as the principal debtor, the defendant cannot be deemed as a defense if the plaintiff bank intends to enforce the mortgage and collect it by force, it cannot be said that there was a reason to refuse the execution of the mortgage registration.

[Reference Provisions]

Articles 110 and 356 of the Civil Act

Plaintiff-Appellant

Jeju Bank Co., Ltd., Counsel for the defendant-appellant

Defendant-Appellee

Attorney Lee Ho-chul et al., Counsel for the defendant-appellant

original decision

Seoul High Court Decision 88Na17537 delivered on May 19, 1989

Text

The judgment below is reversed and the case is remanded to Seoul High Court.

Reasons

According to the reasoning of the judgment of the court below, the court below acknowledged that the above above above ground building was registered on the date of the above contract when the defendant entered into a mortgage contract with the non-party company and the non-party company with the right to collateral security 200 million won as the debtor with the land and the above ground building owned by the defendant as the collateral, and the non-party company and the defendant agreed on December 27, 1984 to use 100 million won each, respectively, at the above non-party company and the defendant as collateral 300 million won with the above non-party company's maximum debt amount as the collateral 30 million won with the above land and the above ground building with the non-party company's collateral 30 million won. The above ground for the conclusion of the mortgage contract with the non-party company's collateral security right on the land of this case is that the non-party company's establishment of collateral security right was completed on the date of the above contract, and the non-party company's loan 200 million won was delivered to the plaintiff company's trust against the non-party company as collateral.