Plaintiff

Han Bank Co., Ltd. (Law Firm Shin & Kim, Attorneys Yellow-chul et al., Counsel for defendant-appellant

April 26, 2007

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant will implement the registration procedure for cancellation of the registration of the establishment of a neighboring mortgage completed on January 9, 1984 by the receipt of No. 41626 of December 5, 1983 and the registration procedure for cancellation of the establishment of a neighboring mortgage completed on January 820 of the same registry office, which was completed on January 9, 1984.

1. Basic facts

A. On October 18, 1983, the non-party gold Forced District Co., Ltd. (hereinafter the “gold Forced District Co., Ltd.”) completed the registration of ownership transfer in the name of gold Forced District Co., Ltd. as to the building 2, 3, and 6 buildings indicated in the attached list of 1931m2 and 1931m2 and its ground.

B. On November 30, 1983, January 7, 1984, the gold Forced Co., Ltd. (hereinafter the Seoul Bank) concluded a comprehensive mortgage agreement with the Seoul Trust Bank (hereinafter the “Seoul Bank”), under which the non-party Pungcheon Group Co., Ltd. (hereinafter the “Pungcheon Group”) currently bears or will bear all the obligations arising from bills lending, bill discount, payment guarantee, and other transactions against the Seoul Bank, and at the same time set up a comprehensive collateral mortgage agreement with the Daejeon District Court, Daejeon District Court, Daejeon District Court, received on December 5, 1983, with the maximum debt amount of KRW 30 million, the debtor Pungcheon Bank, the registration of establishment of mortgage as the Seoul Bank, and the registration office received on January 7, 1984, with the maximum debt amount of KRW 200,000,000,000,000,000,000,000 won, the debtor, and the debtor.

C. After October 31, 1992, the above (number omitted) site was divided into 1,4, and 5 sites listed in the separate sheet. The Nonparty completed the registration of ownership transfer on December 31, 1992 with respect to each real estate listed in the separate sheet (hereinafter “the instant real estate”). The Plaintiff purchased the instant real estate from the Nonparty on May 10, 2004 and completed the registration of ownership transfer under the Plaintiff’s name on June 15, 2004.

D. Meanwhile, on December 2, 2002, the Seoul Bank merged the former Han Bank and changed its trade name to the Defendant Bank.

E. The debt owed to the Defendant by South Korean land control company (hereinafter referred to as South Korean land control company), which combines wind control land, is about KRW 15.8 billion as of January 16, 2007.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 6, Gap evidence 2-1 to 3, Eul evidence 1-2, Eul evidence 2-1, Eul evidence 6-1 to 6-3, and the purport of the whole pleadings

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

(1) At the time of the establishment of the instant right to collateral security (hereinafter “instant right to collateral security”), the said right to collateral security (hereinafter “right to collateral security (hereinafter “right to collateral security”). However, on January 1, 1986, the affiliate relationship with Pung Man Man Manung was terminated, and the obligor was practically changed due to the consolidation into the South Korean legal system. Moreover, after the Nonparty or the Plaintiff acquired the instant real estate, the current loan was changed to a new loan due to the change of the debtor’s obligation to collateral security (hereinafter “right to collateral security”).

Therefore, in order for the instant right to collateral on the instant real estate provided by a third party to be effective even after the establishment of a new debt, the consent of the Nonparty or the Plaintiff, who is the new owner of the collateral, was not obtained, and thus, the instant right to collateral security should be revoked.

(2) Article 88 Subparag. 2 of the Regulation on Supervision of Banking Business and Article 64 Subparag. 2 of the Rule on the Implementation of Banking Business Supervision provides that when acquiring a security from a third party, an act requiring comprehensive collateral security is prohibited, in principle, as unsound business practices, and also the internal regulations of the defendant company are similar to those of the defendant company. In addition, the defendant company established a comprehensive collateral security on the real estate of this case, which is owned by a third party in violation of the above provision. In addition, the comprehensive collateral security offered by a third party, which is contrary to equity, should be strictly interpreted by preventing the third party from deviating from the duty of collateral. In light of the above circumstances, the instant collateral security should be cancelled.

B. Determination

(1) Determination as to the assertion of novation

In full view of each of the statements in Eul evidence 2-2, Eul evidence 4-1, and Eul evidence 4-2, and the whole purport of the arguments, the relationship between the gold forced and scarbies, which had been an affiliate at the time of the establishment of the instant mortgage, was terminated around January 1, 1986. Although Scarbs, which was the principal debtor of the secured debt of the instant mortgage, were consolidated into South Korea around August 1, 2005, it is difficult to view that the debtor was changed solely with the above recognition. Rather, since the above merger results in the effect of transferring all of the rights, obligations, or obligations of the company to the defendant bank as a whole and legally as a matter of course, the instant debt against the defendant bank at Scarbs as a result of the above merger was succeeded to South Korea branch and the instant mortgage was transferred as a security for South Korea branch through the accompanyingness of the secured debt, the plaintiff's assertion to the effect that the debtor was actually changed due to the resolution of the relationship and the merger.

In addition, the Plaintiff asserts to the effect that the instant right to collateral security is null and void insofar as the existing loan, which was secured by the instant right to collateral security, was changed to a new loan, was conducted without the Plaintiff’s consent. However, since the instant right to collateral security is recognized as above, the instant right to collateral security for securing not only the obligor at the time of establishment but also all the obligations to be borne by the obligor within the scope of the maximum debt amount, as well as all the obligations to be borne by the obligor within the scope of the maximum debt amount, the Nonparty or the Plaintiff acquired the instant real estate shall be naturally included in the secured debt of the said right to collateral security, and even if the existing obligation newly borne was extinguished and its nature as a new debt, the said new obligation is also included in the scope of the secured debt of the said right to collateral security. Thus, the Plaintiff’s assertion cannot be accepted (the Plaintiff, who acquired the ownership of the mortgaged real estate, can make a claim against the Defendant for termination of the right to collateral security within the scope of the maximum debt amount established after the obligation becomes final and conclusive, and thus, the Plaintiff can only claim termination of the obligation against the Defendant.

(2) Determination as to the assertion of banking supervision regulations

On the other hand, the above provision is not an effective provision, but also a third party's security "acquisition". The above provision was enacted and enforced around 1998, and in particular, Article 64 subparagraph 2 of the Enforcement Rule, which is the relevant provision of this case, is a new provision after 2000, and thus cannot be applied retroactively to the around 1984 that the defendant company acquired the security. In addition, it cannot be deemed that the scope of validity is generally limited and interpreted or the mortgage cannot be deemed null and void unless there are special and exceptional circumstances under the ground that it is a comprehensive collateral security provided by the third party. In this case, it is recognized by the statement of evidence No. 3 and the purport of oral argument in this case. In other words, it is difficult to view that there is no special circumstance to limit the interpretation of the mortgage contract of this case, and there is no evidence to support this part of the plaintiff's assertion.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment List omitted]

Judges Park Jung-hwa (Presiding Judge)