(영문) 수원지방법원 2015.01.08 2014가단13026

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(영문) 수원지방법원 2015.01.08 2014가단13026

근저당권설정등기 말소

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1. The plaintiff's claim is dismissed.

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

Reasons

1. The parties' assertion

A. The Plaintiff B, on August 14, 2013, concluded a mortgage agreement on the instant real estate (hereinafter “instant mortgage agreement”) with the Defendant on August 14, 2013, under the status of excess of the debt, such as the maximum debt amount of KRW 390 million, which is already exceeded the value of the instant real estate, on the real estate indicated in the separate sheet, which is one of his own property (hereinafter “instant real estate”), and completed the registration of establishment of a mortgage (hereinafter “registration of establishment of a mortgage”) with the Suwon District Court No. 94659, Suwon District Court as the Defendant with the maximum debt amount of KRW 70 million on the same day, as the maximum debt amount of the instant real estate, and as the Defendant with the Suwon District Court No. 94659, Jun. 14, 2013.

Therefore, the mortgage contract of this case should be revoked by fraudulent act, and the defendant is obligated to implement the registration procedure for cancellation of the mortgage establishment registration of this case to B due to restitution to its original state.

B. The Defendant, upon undergoing the process of divorce with Defendant B, shall pay the Defendant KRW 70 million in the name of consolation money and division of property, and it does not constitute a fraudulent act on the ground that the instant apartment was completed with respect to the instant apartment in order to secure the payment thereof.

In addition, at the time of the agreement on divorce as above, the defendant expected the remaining amount after deducting the actual debt amount of senior collateral from the market price of the real estate of this case, and concluded the instant collateral security agreement with the consolation money and the division of property. At the time, the defendant was not aware of the financial condition of B other than the above senior collateral security, and thus, the plaintiff's assertion is without merit.

2. Determination

A. In the division of property, fraudulent act, and divorce of the burden of proof, the couple has a marital relationship.

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