The plaintiff can seek the registration procedure for cancellation against the non-party on behalf of the defendant.

The plaintiff can seek the procedure for cancellation registration against the non-party on behalf of the defendant. Thus, the defendant must implement the procedure for cancellation registration of the establishment registration of the neighboring mortgage as alleged by the plaintiff.

Civil Code § 404. Creditor's right of subrogation

2018 Ghana 560759 De-mortgage

Korea

Bankruptcy Trustee DDD by the Bankruptcy Trustee of AAD

April 9, 2019

May 7, 2019

1. The defendant will implement the procedure for registration of cancellation of the registration of the establishment of a neighboring mortgage that was completed as*** on September 12, 1997 with respect to each real estate listed in the separate sheet to BB.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Facts of recognition;

A. The Plaintiff’s real estate stated in the separate sheet in order to collect delinquent national taxes against CCC

(hereinafter referred to as "the real estate of this case") completed the attachment registration on April 24, 1998.

B. On September 12, 1997, AA determined as the maximum debt amount of 100,000,000 won with respect to the instant real property, and completed the registration of establishment of a neighboring mortgage under Seoul** district court***** (hereinafter referred to as the “instant establishment of a mortgage”) as the debtorCC.

(c) AA was declared bankrupt on July 28, 2014 (* District Court 2014Hahap*) and the Defendant was appointed as a bankruptcy trustee of AA (hereinafter referred to as "A").

D. The plaintiff filed a lawsuit against the Sungwon Construction Co., Ltd. seeking the cancellation of the registration of the establishment of the creation of the creation of the creation of the creation of the creation of the creation of the instant root, and the above parties adjusted on May 15, 2002 (** High Court 2001Na*, the conciliation protocol stating the following contents (* the conciliation protocol of this case).

1. CCC shall pay 500 million won to the bankrupt AA by December 31, 2004.

2. Upon the implementation of Paragraph 1, AAA shall perform the procedure for cancellation of the registration of cancellation of the establishment of a neighboring mortgage completed by CCC on Sep. 12, 1997 ** district court* the Busan District Court* the receipt of the branch court****** the district court* the branch court* the branch court* the branch court* the branch court* the branch court* the branch court* the branch court* the branch court* the branch court* the branch of January 30, 1997 * the execution of the provisional disposition order* the branch court.

3. If the CCC fails to comply with paragraph 1 by December 31, 2004, the CE shall, in lieu of the implementation of paragraph 1, implement the procedure for the registration of ownership transfer on the ground of payment in kind on January 5, 2005 with respect to the bankrupt AA with respect to the area ** * * * Mam2.

4. If paragraph 1 or 3 is fulfilled, the obligation of the Plaintiff against the Defendant shall be extinguished.

5. Upon the implementation of Paragraph 1 or 3, the defendant transfers the right to collateral security established by CCC or CCC on September 12, 1997 to a third party designated by ** district court*** registry on September 12, 1997, and cancel the provisional attachment order** district court** 97Kadan on January 22, 1997* at the time the plaintiff requested the enforcement of the provisional attachment order.

6. CCC shall waive the remaining claims against AA by the bankrupt.

7. The costs of the lawsuit in the first instance and the appellate trial shall be borne respectively;

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 to 4, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

Since CCC repaid its debt to AA pursuant to paragraph (1) of the instant protocol, the secured debt in the instant protocol was fully extinguished pursuant to paragraph (4) of the instant protocol.

Even if the secured claim in the registration of the establishment of the neighboring mortgage of the instant case has not been extinguished, 10 years;

The prescription has expired due to the excess of the statute of limitations.

Therefore, the Plaintiff, as a creditor of CCC, seeks cancellation of the establishment registration of the instant neighboring establishment against the Defendant by subrogation of CCC.

B. Determination

1) The facts that CCC was insolvent or in excess of its debt as of the date of the closing of argument in this case, and CCC filed a lawsuit against CCC AA seeking cancellation of the registration of creation of a mortgage in the instant case, and the conciliation was concluded on May 15, 2002. However, since the ten years have passed thereafter, CCC’s right to exercise against the bankrupt party’s sexual source construction in accordance with the instant conciliation protocol was also extinguished by prescription. Accordingly, the fact that CCC did not seek cancellation of the registration of creation of a mortgage in the instant case against CCC AA and the Defendant until the date of closing of argument in this case is later recognized by comprehensively taking account of the overall purport of the arguments or all of the arguments in this case. Thus, the Plaintiff’s claim against the Defendant subrogated to CCC is recognized as a need for preservation.

2) Next, we examine the existence of the secured claim regarding the establishment of the instant mortgage establishment registration. The evidence submitted by the Plaintiff alone is insufficient to recognize that CCC satisfied the obligation stipulated in paragraph (1) of the instant protocol to AA by the bankrupt party, and there is no other evidence to recognize otherwise. Therefore, it is difficult to deem that the secured claim regarding the establishment registration of the instant neighboring mortgage was extinguished by the repayment.

However, the period of extinctive prescription is 10 years for the secured claim of the establishment registration of the mortgage of this case, and even after the date of the lawsuit of this case, it is apparent that 21 years have passed since the establishment of the mortgage of this case. Thus, the secured claim of the establishment registration of the mortgage of this case was already extinguished by extinctive prescription.

3) Therefore, the Defendant is liable to implement the registration procedure for cancellation of the registration of the establishment of the instant neighboring mortgage to BB, the owner of the instant real estate.

3. Conclusion

Since the plaintiff's claim is legitimate, it is so decided as per Disposition with the assent of all participating Justices.