The defendant completed on April 12, 2017 with respect to construction machinery listed in the attached list to the plaintiff as the receipt C (B).

1. In full view of the purport of Gap evidence No. 1 and the entire pleadings, the fact that the plaintiff purchased construction machinery listed in the separate sheet (hereinafter referred to as "construction machinery of this case") from D on January 3, 2020 and completed the ownership transfer registration on the same day, and the fact that on April 12, 2017, the mortgage creation registration on the construction machinery of this case was completed on April 12, 201, stating that the mortgagee was the defendant, debtor D, and claim amounting to KRW 40 million (hereinafter referred to as "mortgage of this case").

2. The assertion and judgment

A. The plaintiff asserts that the mortgage of this case is not only the secured debt but also the mortgage in the name of a third party who is not the creditor but also the mortgage in the name of a third party which is not the creditor, and thus, the defendant has a duty to cancel it.

As to this, the defendant asserts that the mortgage of this case is valid as it is for securing the defendant's claim for the loan to Eul, who is the defendant, and that the defendant designated by E under an agreement between E and D was established as a mortgagee.

B. 1) Determination 1) The establishment registration of a collateral in the name of a third party is valid in cases where, in principle, the creditor and the mortgagee should be the same person inasmuch as the right to collateral is established for the purpose of collateral security. However, in cases where the right to collateral security with a third party is established, there exists an agreement between the creditor, the debtor, and the third party on such point, and in special circumstances where the claim is deemed to have been actually reverted to the third party by means of assignment of claims, a contract for a third party, an indivisible relationship, etc. (see, e.g., Supreme Court en banc Decision 9Da48948, Mar. 15, 2001). The mortgage in the instant case is merely for securing the loan credit with a third party, even according to the Defendant’s assertion.