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(영문) 제주지방법원 2017.05.26 2016가단12198
부동산인도등
Text

1. Of the counterclaim of this case, the part of the claim for the cancellation of the registration of the establishment of a neighboring mortgage shall be dismissed.

2...

Reasons

A principal lawsuit and a counterclaim shall be deemed simultaneously.

Basic Facts

A. As to the instant land and building, the registration of transfer of ownership in the Plaintiff’s name was completed on August 1, 2013 on the grounds of the sale on the same date.

B. On August 29, 2013, with respect to the instant land and building, the registration of creation of a mortgage (hereinafter “registration of creation of a mortgage”) was completed on August 29, 2013, including the Plaintiff, the maximum debt amount of 13,00,000,000 won, and the registration of creation of a mortgage (hereinafter “registration of creation of a neighboring mortgage under the name of the Saemaul Depository”). On October 21, 2013, the registration of creation of a mortgage (hereinafter “registration of creation of a neighboring mortgage under the name of the Defendant B”) was completed on October 21, 2013.

C. At present, the Defendants were residing in the instant land and building from April 2013 to the present date, and on June 29, 2016, the Plaintiff notified Defendant B of the following fact: (a) the procedure for registration of cancellation of the establishment registration of a neighboring establishment of the Defendant B’s name; and (b) the delivery of the instant land and building.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, and 5, and the plaintiff's assertion of the purport of the entire pleadings as to the purport of the whole pleadings has considerable debts at the time of acquiring the land and buildings of this case. Thus, under the understanding of defendant B, the plaintiff completed the registration of creation of a neighboring mortgage in the defendant B's name and allowed the defendant B to reside free of charge in the above land and buildings until the debt relationship is terminated

The Plaintiff requested the Defendants to deliver the instant land and buildings, and the Defendants refused to perform the said contract by asserting that they received a donation. As such, the Plaintiff rescinded a loan agreement with Defendant B, and the said contract is rescinded by serving the written complaint of this case.

Therefore, the Defendants are obligated to deliver the instant land and building to the Plaintiff, and the registration of establishment of a neighboring mortgage under Defendant B’s name is null and void as it is based on a false representation contract. Therefore, Defendant B is obligated to implement the registration procedure of cancellation of the establishment of a neighboring mortgage.

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