K&C Co., Ltd. (Law Firm C&A, Attorneys Forest land-oriented et al., Counsel for the defendant-appellant)

Defendant 1 and two others (Attorney Kim Dong-chul, Counsel for the defendant-appellant)

November 23, 2018

Daejeon District Court Decision 2016Da20061 Decided July 6, 2017

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

Of the real estate listed in the separate list No. 1 (hereinafter referred to as the "mortgage No. 1"), Defendant 1, as the collective security (hereinafter referred to as the "mortgage No. 2, 46,450, the collective security (hereinafter referred to as the "mortgage No. 1, 46,450, the collective security (hereinafter referred to as the "mortgage No. 2, 56, 46, 450, hereinafter referred to as the "mortgage No. 46, 56, 56, 50, hereinafter referred to as the "mortgage No. 56, 66, 46, 450, hereinafter referred to as the "mortgage No. 56, 66, 46, 46, 50, 56, 56, 56, 46, 56, 50, 56, 56, 56, 56, 56, 466, 466, 4, etc.) of this case

2. Purport of appeal

The judgment of the first instance is revoked. All of the Plaintiff’s claims against the Defendants are dismissed.

1. Facts of recognition;

A. On June 7, 2006, the Plaintiff was sentenced to the Daejeon District Court Decision 2006Kadan13787, that “Nonindicted 3 shall pay to the Plaintiff 90,741,984 won jointly and severally with Nonparty 2, Nonparty 4, and Nonparty 5, and the Plaintiff 22% per annum from August 31, 1995 to October 31, 2003, and 20% per annum from November 1, 2003 to the day of full payment.” The above judgment became final and conclusive on July 7, 2006.

B. On November 30, 2012, the Plaintiff received an order to pay the Plaintiff KRW 1,008,406,761, as well as KRW 23,300,00,00 from November 6, 2012 to the date of full payment, and the payment order was finalized on March 22, 2013.

C. On April 29, 2014, the Plaintiff received an order to pay KRW 866,277,360 and KRW 16,610,00 per annum to the Plaintiff jointly and severally with Nonparty 6 and Nonparty 2, as well as KRW 16,610,00 from March 10, 2014 to the date of full payment. The above payment order was finalized on June 28, 2014 (hereinafter the above order was finalized on June 28, 2014).

D. Nonparty 3 owned shares of each of the instant real estates as indicated in the “ownership relationship” column in Tables 1 and 2 as indicated below, and completed the registration of establishment of each of the instant real estates to the Defendants as indicated in each of the “mortgage-backed mortgage creation relationship” column in Tables 1 and 2 below.

A table included in the main sentence [1] 259,266/546, 450 and 64. 6. 2. 31 December 31, 2001 (the 2006. 36. 36. 2, 2006, 646. 5. 646. 6. 2, 2006, 20564. 646. 5. 65 billion won (the 206. 36. 365 billion won) on July 13, 1999 (the 205. 2, 2001) on the date of the registration of the ownership of, and the right to collateral security (the cause of the registration) of, the non-party 3's share (the cause of the right to collateral security) on the non-party 3, 1997 (the purchase and sale on July 21, 201),

Table 2 6,266/546,450 of the maximum debt amount on July 23, 2003 (transaction July 16, 2003) 176,266/546,450 5, 2004, the debtor of the right to ownership and right to collateral security with respect to the instant immovable property 20 million won on March 20, 2004 (additional contract on March 17, 2004) (the additional contract) 20 million won on March 20, 204, Nonparty 3, 176,26/546,4506 June 3, 2006.

E. The principal and interest of the preservation claim of this case is KRW 2.48 billion in total, and the value of the share ownership of each real estate of this case owned by Nonparty 3 is KRW 450 million as of around 2013, and Nonparty 3 is in excess of the obligation, as there is no particular property other than the share ownership of each real estate of this case.

【Ground of recognition】 The fact that there has been no dispute, each entry of Gap's 1 through 6 (including virtual number), and the purport of whole pleadings

2. Determination as to the cause of action

A. The parties' assertion

1) Plaintiff

A) Since there was no secured debt of each of the instant mortgages at the time the establishment registration of each of the instant mortgages was completed, the establishment registration of each of the instant mortgages is null and void. Accordingly, by the subrogation right under Article 404 of the Civil Act, Defendant 1, Defendant 2, Defendant 3, Defendant 2, and Defendant 3 are obligated to implement the registration procedures for cancellation of the establishment registration of each of the instant mortgages under the subrogation right under Article 404 of the Civil Act.

B) Even if the secured debt was established at the time of the creation of the instant mortgage Nos. 1, 2, 3, 5, and 6, the extinctive prescription of the secured debt has expired after the lapse of ten years from the date of the establishment, and thus, the registration of creation of the mortgage of the instant case Nos. 1, 2, 3, 5, 6, and 6 should be cancelled. Therefore, according to the obligee’s subrogation right under Article 404 of the Civil Act, Defendant 1, Defendant 2, and Defendant 3, Defendant 2, each of the registration procedures for the establishment of the mortgage of the instant case Nos. 1, 2, and 5, and Defendant

2) Defendants 1 and 2

A) Defendant 1 and Defendant 2’s mother, Nonparty 1 lent hot spring hole development funds to Nonparty 2, one’s own partner, and Nonparty 3, the spouse of Nonparty 2, as a security therefor, gave to Defendant 1 and Defendant 2 a mortgage over the first, second, third, five, and six roots of this case, and thus, the mortgage over the first, second, third, five, five, and six roots of this case is valid.

B) As the extinctive prescription of the secured claim of the instant Nos. 1, 2, 3, 5, and 6 collateral was interrupted by the approval of the obligation, the extinctive prescription was not completed.

3) Defendant 3

Defendant 3 lent money to Nonparty 2, who is the husband of Nonparty 3, several times from 2003, and was set up the instant fourth collateral by Nonparty 3 to secure this. Therefore, the instant fourth collateral mortgage is a valid collateral where the secured claim exists.

B. Determination

1) Determination as to the establishment registration of the first, second, third, five, and sixth class of the instant case

In principle, barring special circumstances, such as where a claim may be deemed to substantially accrue to a titleholder of the right to collateral security, in light of the principle of the appendantness of the right to collateral security, the claim and the mortgage cannot be different from the subject of the claim (see Supreme Court Decision 2000Da49879, Dec. 12, 200).

In light of the above legal principles, even based on the assertion by Defendant 1 and Defendant 2, since the secured creditor at the time of the establishment of the instant mortgage Nos. 1, 2, 3, 5, and 6 was Nonparty 1, the secured creditor at the time of the establishment of the instant mortgage is Nonparty 1, the secured creditor and the mortgagee at the time of the establishment of the mortgage are different, and there is no evidence to prove that the secured creditor actually belonged to Defendant 1 and Defendant 2.

Therefore, without examining the completion of the extinctive prescription of the secured claim, the registration of the establishment of the mortgage of the Nos. 1, 2, 3, 5, and 6 of the instant case should be cancelled as an invalid registration.

2) Determination on the registration of the establishment of a neighboring to the fourth place of the instant case

In order to establish the right to collateral security, there must be a legal act establishing the right to collateral security separately from the act of establishing the right to collateral security. The burden of proof as to whether there was a legal act establishing the right to collateral security at the time of establishment of the right to collateral security is on the part of claiming its existence (see Supreme Court Decision 2009Da72070, Dec. 24, 2009).

The written evidence Nos. 1 through 5 alone is insufficient to recognize the fact that Defendant 3 lent money to Nonparty 2, the husband of Nonparty 3, on several occasions from 2003 to Nonparty 2, who was the husband of Nonparty 3, and the fact that Defendant 3 was created with the instant collateral security by Nonparty 3 to secure this, and there is no other evidence to acknowledge this otherwise.

Therefore, the establishment registration of the establishment of the fourth place of the instant case should be cancelled as an invalid registration that does not exist the secured claim.

3) Sub-determination

Therefore, the registration of the establishment of each of the preceding units of this case shall be cancelled as null and void registration, and since the plaintiff is the creditor of the non-party 3 and the non-party 3 is in excess of the debt, as seen earlier, the obligee of the non-party 3 by subrogation under Article 404 of the Civil Code, the defendant 1, the registration of the establishment of the establishment of the non-party 1, the non-party 2, the registration of the establishment of the non-party 3, the non-party 6, and the defendant 3 are obligated to implement the registration procedure of the cancellation of the establishment

3. Conclusion

Therefore, the plaintiff's claim against the defendants shall be accepted in its entirety, and the judgment of the court of first instance is just in its conclusion, and the defendants' appeal is dismissed in its entirety as it is without merit.

[Attachment]

Judges Song-sik (Presiding Judge)