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(영문) 청주지방법원 2015.08.20 2015가단4429
근저당권설정등기말소
Text

1. The plaintiff's claim is dismissed.

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

Reasons

1. Basic facts

A. The Plaintiff applied for a payment order against B, Cheongju District Court Decision 2009Da6855, 53,823,652 won, and damages for delay thereof, and received the payment order on February 25, 2009, and the same year.

3. 17. The above payment order was finalized as it is.

B. Meanwhile, on January 21, 2002, while owning each real estate listed in the separate sheet (hereinafter “instant real estate”), B completed on January 21, 2002 the registration and receipt of the Cheongju District Court with respect to the said real estate, the registration of the establishment of a mortgage over KRW 100 million with respect to the said real estate (hereinafter “mortgage”) was completed.

[Reasons for Recognition] Unsatisfy, entry in Gap evidence 1 and 2 (including branch numbers, if any) and the purport of the whole pleadings

2. The Defendant asserts to the effect that there is no need to preserve the entire amount of the claim, since the first collateral with the maximum debt amount of KRW 53,352,093, which is the Plaintiff’s claim for indemnity against B, has been set up with the maximum debt amount of KRW 65 million on the instant real estate. However, the above secured debt of the said secured debt is a claim for a loan of KRW 50,000,000, which is a juristic person separate from the Plaintiff, to B with the household general funds, and thus, the Defendant’s assertion is without merit.

3. Summary of the parties' arguments

A. In light of the fact that the Plaintiff’s assertion failed to submit evidence of financial transactions, etc. which can prove that the Defendant actually lent money to B, and that there is a close relative relationship with the Defendant B, the instant right to collateral security is null and void as having been falsely set out without the secured claim. Even if the secured claim exists, the extinctive prescription has expired ten years after the date of registration of creation of the said right to collateral security, and thus, is null and void.

Therefore, the plaintiff is insolvent B as a creditor of B.

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