2015 Gohap 547716 Confirmation of Non-existence of Obligation

A

Korea Deposit Insurance Corporation for the bankrupt Korea Savings Bank

October 30, 2015

November 11, 2015

1. The instant lawsuit shall be dismissed.

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

As to the real estate stated in the attached list, it is confirmed that the Seoul Central District Court registered the Seoul Central District Court on December 29, 201, the collateral obligation for the registration of the establishment of collateral security, which was completed on December 29, 201.

1. Basic facts

A. Details of the establishment of the instant mortgage

1) On December 201, 201, B, the husband of the Plaintiff, was only E of Korea Savings Bank Co., Ltd. (hereinafter “Korea Savings Bank”) with the introduction of D, a stock company C (hereinafter “C”) around December 201. At that time, B received a request from Korea Savings Bank (hereinafter “Korea Savings Bank”) to “Korea Savings Bank under the audit of the Financial Supervisory Service, which is likely to be subject to suspension of business due to the low ratio of BS equity capital. Therefore, in order to increase the ratio of BS equity capital, BS equity capital, Korea Savings Bank was set up as a collateral security on the real estate listed in the attached list owned by the Plaintiff (hereinafter “instant building”).

2) The plaintiff and Eul proposed that "the plaintiff and Eul may at any time cancel the above right to collateral security and make a loan within the scope of the maximum debt amount of the right to collateral security at any time when they wish to do so." The plaintiff and Eul received the above proposal from the Korea Savings Bank for the future business, and on December 29, 201, as to the building of this case, the registration of creation of the right to collateral security was completed on December 29, 201 as "the maximum debt amount is KRW 670,000,000,000,000 won, the debtor C and the Korea Savings Bank for the debtor, and the Korea Savings Bank for the debtor" (Seoul Central District Court Registration Office No. 81883, Dec. 29, 2011; hereinafter referred to as "the right to collateral security of this case"). On January 29, 2012, the plaintiff demanded the Korea Savings Bank to cancel the agreement of this case as soon as possible to the plaintiff."

B. Details of the previous lawsuit

1) On May 6, 2012, Korea Savings Bank was subject to business suspension by the Financial Supervisory Service. On August 9, 2012, the Plaintiff filed a lawsuit against Korea Savings Bank seeking cancellation of the registration of the instant mortgage creation (hereinafter “previous lawsuit”).

2) On February 28, 2013, when the first instance trial of the previous lawsuit was in progress, the bankruptcy was declared against the Korea Savings Bank ( Daejeon District Court 2013Hahap2) and the Defendant was appointed as a bankruptcy trustee (Seoul District Court 2013Hahap2). In the previous litigation procedure, the Defendant taken over the status of the party to the Korea Savings Bank.

3) The appellate court of the previous lawsuit dismissed the Plaintiff’s claim in the previous lawsuit to the effect that “the instant mortgage contract between the Plaintiff and the Korea Savings Bank constitutes a false conspiracy, and thus becomes null and void, and the claims for loans to Korea Savings Bank C, which is the secured debt of the instant collateral security, are also based on an invalid credit transaction agreement as a false conspiracy. However, the Plaintiff cannot oppose the Defendant, a bona fide third party (Seoul High Court Decision 2013Na74211 Decided May 5, 2014).” The Plaintiff appealed on the grounds that the appellate court’s judgment was justifiable, and the appellate court dismissed the appeal (Supreme Court Decision 2014Da39671 Decided December 24, 2014).

4) After the judgment of the court of final appeal was rendered, the Defendant applied for a voluntary auction of the instant building on January 2, 2015 and rendered a decision to commence a voluntary auction on January 2, 2015 (Seoul Central District CourtF) (based on recognition). The fact that there is no dispute, Gap evidence Nos. 1, 2 and 1 through 3 (including the serial number), and the purport of the whole pleadings.

2. Determination

ex officio deemed.

A. Although the Plaintiff sought the cancellation of the instant right to collateral security against the Defendant in the previous lawsuit, the judgment dismissing the Plaintiff’s claim on the ground that the Defendant constituted a bona fide third party in false conspiracy, which became final and conclusive, and thus, the Plaintiff did not have the right to claim cancellation of the instant right to collateral security against the Plaintiff. In the instant lawsuit, the Plaintiff sought confirmation that the instant right to collateral security was nonexistent on the ground that “the instant lawsuit did not have the right to claim cancellation of the instant right to collateral security against the Plaintiff” due to the non-existence of the instant right to collateral security due to the non-existence of the resolution of the board of directors, absolute invalidation of the instant right to collateral security obligation due to the non-existence of the resolution of C in the

B. The subject matter of the claim for cancellation registration is the claim for cancellation registration in question, and the cause of the claim, which is the basis of its identity, is the invalidation or absence of the cause of registration in question, and individual grounds supporting the invalidity or absence of the cause of registration, are independent means of attack and defense, and thus cannot be deemed to constitute a separate cause of claim (see, e.g., Supreme Court Decisions 80Da1548, Dec. 22, 1981; 97Da54024, Sept. 17, 199). However, all of the grounds for the plaintiff's assertion of the non-existence of the secured obligation in the lawsuit in this case are different from that of the previous lawsuit, as otherwise alleged in a false conspiracy in the previous lawsuit, from the independent means of attack and defense supporting the invalidity or non-existence of the mortgage in this case, and thus, it cannot be permitted due to conflict with the final judgment in the previous lawsuit (see, e.g., Supreme Court Decision 80Da15448, Sept. 17, 1999).

C. Meanwhile, a lawsuit seeking confirmation is permissible when it is the most effective and appropriate means to resolve the dispute, where the Plaintiff’s right or legal status exists and the recognition of the judgment of confirmation is the most effective and appropriate means. In addition, in the event the mortgagee seeks to confirm that there is no obligation to be secured based on the mortgage contract, and to seek cancellation of the registration of creation of a mortgage on the ground that there is no obligation to be secured, it would be a direct means to resolve the dispute effectively and appropriately. Therefore, it cannot be said that there is a benefit of confirmation to seek confirmation that there is no obligation to be secured based on the mortgage contract separately (Supreme Court Decision 2000Da5640 Decided April 11, 200).

D. In light of the above legal principles, if the plaintiff sought confirmation of non-existence of the secured obligation of this case along with the cancellation of the secured obligation of this case in the previous lawsuit, the claim for confirmation of non-existence of the secured obligation of this case would have been rejected as there was no benefit of confirmation. If the plaintiff sought confirmation of non-existence of the secured obligation of this case in the lawsuit of this case along with the confirmation of non-existence of the secured obligation of this case, the claim for confirmation of non-existence of the secured obligation of this case would be dismissed as there was no benefit of confirmation, and the claim for cancellation of the secured obligation of this case was dismissed as seen earlier. However, only because the plaintiff did not seek cancellation of the secured obligation of this case

E. Furthermore, in light of the fact that the final and conclusive judgment in the previous lawsuit explicitly stated that the contract to establish the right to collateral and the secured obligation of this case are null and void in its reasoning, it appears that there is no person who asserts or exercises the right to the Plaintiff other than the Defendant, and that in the lawsuit of this case, the Plaintiff cannot assert the invalidity of the right to collateral security of this case against the Defendant on the ground that the judgment in favor of the Plaintiff was rendered and final and conclusive, and that it is not possible to block the auction procedure, there is no special circumstance that the Plaintiff should separately seek confirmation of the absence of the right to collateral security of this case, regardless of the cancellation

3. Conclusion

Therefore, the lawsuit of this case is unlawful as there is no benefit of confirmation, and it is so decided as per Disposition.

Chief Judge Park Jong-hwan

Judges Lower Sang-hoon

Judges Kim Dong-dong

A person shall be appointed.