Plaintiff

Defendant

August 13, 2009

1. The plaintiff's claim is dismissed.

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

The defendant confirmed that there is no collateral obligation of the registration of the establishment of a neighboring mortgage (the maximum bond amount of KRW 20 million, the debtor, the mortgagee, and the mortgagee) that was completed on September 7, 2001 by the Busan District Court Registry No. 1421 with respect to the share of 3290/470 of the 4757m2 (hereinafter "the real estate in this case") among the 4757m2 in Gangseo-dong, Gangseo-gu, Busan Metropolitan City (number omitted) with respect to the plaintiff.

1. Basic facts

On September 6, 2001, the Plaintiff borrowed 20 million won from Nonparty 1, who was the Defendant’s trial money, to the obligee as the Defendant at an interest rate of 2% per month. In order to secure the obligation (hereinafter “instant obligation”), there is no dispute between the parties to the instant real estate as to the Busan District Court’s Gangseo-gu Office of Registry of Registry on September 7, 2001, the establishment and registration of the maximum debt amount of KRW 20 million, the mortgagee, the Defendant of the right to collateral security, and the Plaintiff’s right to collateral security (hereinafter “instant right to collateral security”).

2. Determination on this safety defense

A. The defendant's assertion

The Defendant asserts to the effect that the instant lawsuit is unlawful against the res judicata effect of the said final judgment, inasmuch as the Plaintiff filed a lawsuit against the Defendant seeking the cancellation of the registration of the establishment of a mortgage of this case against the Defendant.

B. Determination

On the other hand, the subject matter of a lawsuit seeking cancellation of the registration of the establishment of a neighboring mortgage is the existence of the right to claim cancellation of the registration of the establishment of a neighboring mortgage, and thus, res judicata of the judgment does not affect the existence of the secured debt, and the prior argument of the defendant is without merit without examining other points.

3. Judgment on the merits

A. The plaintiff's assertion

(1) The Plaintiff is merely a monetary transaction with Nonparty 1, who is the Defendant’s trial money, and there was no monetary transaction between the Defendant and the Defendant. Therefore, there is no secured debt of the instant collateral security that the Defendant as the obligee does not exist.

(2) On December 5, 2002, the Plaintiff and Nonparty 1 settled all of the Plaintiff’s debt, including the instant debt. Until that time, the amount the Plaintiff is obligated to repay is calculated as KRW 20 million for the principal of the instant debt and KRW 6 million for the interest thereon; ② KRW 3 million for the principal of the instant loan as of April 15, 2002 and interest thereon; ③ KRW 9 million for the principal of the loan as of May 11, 2002 and interest thereon KRW 1.35 million for the principal of the loan and KRW 1.5 million for the interest thereon; ④ KRW 365 million for the principal of the loan as of December 1, 2002; ④ KRW 1.5 million for the principal of the loan as of KRW 6.5 million for the principal, KRW 215 million for the principal of the loan as of December 1, 200, ② KRW 2000 for the principal of KRW 21.25 million for the period of time.2 million.

B) However, around October 11, 2002, prior to the above settlement, Nonparty 1 spent the check at a discount of KRW 3 million at a face value, which the Plaintiff borrowed from Nonparty 1 and delivered to Nonparty 2 for collateral. Since the Plaintiff paid the check on the 29th of the same month with knowledge of such circumstances, the amount equivalent to the check amount should be deducted from the above settlement obligation amount of KRW 14.5 million.

C) Since then, the Plaintiff paid to Nonparty 1 a total of KRW 1281 million (= KRW 9 million received by Nonparty 1 with the money deposited by the Plaintiff in connection with the lawsuit with Nonparty 3, ② the amount transferred to Nonparty 1 at Nonparty 1’s request on December 5, 2002, KRW 810,000,000 to the Defendant’s account; ③ on April 25, 2005, the amount of the check amount deducted was paid to Nonparty 1, and KRW 11,50,000,000 (= KRW 14.5 million - 3 million). Rather, the Plaintiff paid the check amount in excess of KRW 131,1310,00 (in accordance with the Plaintiff’s claim on the above amount due to the interest, etc. on each of the above payments, the comprehensive statement is as follows).

D) Nonparty 5, who was the Plaintiff’s father, prepared a loan certificate to the effect that the amount of KRW 11 million out of the debts included in the above settlement was jointly and severally guaranteed by Nonparty 1. However, even if the debts had already been repaid in excess and extinguished as seen above, Nonparty 1 had to receive KRW 14 million from Nonparty 5 on the pretext of agreement to withdraw the above auction procedure by enforcing compulsory execution on the real estate in the name of Nonparty 5 after filing an application for a payment order based on the loan certificate.

E) Therefore, the instant obligation, which is the secured obligation of the instant right to collateral security, is not all repaid and nonexistent, and rather, the Plaintiff should recover a considerable amount of money.

B. Determination

(1) A) First of all, as to the argument above (1) and the right to collateral security are aimed at securing claims, in principle, the creditor and the mortgagee should be the same person. However, in the case of establishing the right to collateral security with a third party as the holder of the right to collateral security, if there exists an agreement between the creditor, the debtor, and the third party on such point, and if there are special circumstances to deem that the claim has been actually reverted to the third party by means of assignment of claims, contract for the third party, and formation of indivisible claim relations, the registration of creation of the right to collateral security in the name of the third party shall also be deemed valid (see Supreme Court en banc Decision 9Da48948 delivered on March 15, 201, etc.)

B) In light of the following circumstances, the Defendant and Nonparty 1, which were acknowledged as having comprehensively taken account of the overall purport of the pleadings in the statements in the evidence No. 46 and No. 17 as to the instant case, namely, the fact that there was no dispute between the parties, or that there was a loan certificate between the Defendant and the Plaintiff as to the instant obligation, and that the Plaintiff also remitted interest on the instant obligation to the passbook under the name of the Defendant, it is reasonable to deem that there was an agreement between the Plaintiff, Nonparty 1, and the Defendant that the mortgagee was the Defendant, and that the claim was actually reverted to the Defendant. Therefore, the Plaintiff’s assertion that the instant collateral security is null and void against the father’s personality is without merit.

(2) A) Following the argument of the above (2) in light of the health team, Gap evidence No. 3, it is recognized that the plaintiff prepared a certificate of borrowing to the effect that on December 5, 2002, the plaintiff remains 14,500,000 won as debt up to that time and that on the future interest rate shall be calculated as 2% per month.

B) However, in a civil trial, the facts acknowledged in a final judgment on other civil and criminal cases related thereto are flexible evidence, barring special circumstances. Considering the above facts, the Plaintiff asserted to the same effect as the entries in subparagraph 1-1-3, 4-2, and the entire purport of oral argument in the judicial computer system of this court, the Plaintiff extinguished the instant debt, which is the secured debt, by means of repayment, and rather than 13.10,000 won, the Defendant filed a lawsuit seeking cancellation of the registration of the establishment of the instant mortgage and return of 1310,000 won, which is the above excessive repayment amount, to Nonparty 1, but it is difficult to acknowledge that the above settlement had been made by Nonparty 2 including the instant debt at the time of settlement of accounts on December 5, 202 between the Plaintiff and Nonparty 1, and it is difficult to find that the above settlement was included in the above settlement agreement, as long as it is difficult to view that the Plaintiff’s claim was established separately and there was no evidence supporting the Plaintiff’s claim that the above repayment was made against Nonparty 10.

C) Therefore, the Plaintiff’s assertion on this part is without merit, which is premised on the fact that the settlement agreement between the Plaintiff and Nonparty 1 included the instant debt in the settlement agreement on December 5, 2002, and its validity also extends to the instant debt owed by the Defendant as the obligee.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-chul