Cancellation of Mortgage

The Republic of Korea is obligated to express his/her intention of consent on the registration of cancellation of the establishment of a mortgage near the instant real estate.

Article 369 of the Civil Act

2015Gahap20418 Cancellation of the right to collateral security

Kim*

Republic of Korea 2 others

1. The Plaintiff:

A. Defendant AB performed the registration procedure for cancellation of the registration of the establishment of a mortgage near the establishment of a mortgage completed on October 0, 2010, received No. 8****, with respect to each real estate listed in the separate sheet;

B. Defendant AA Si, Defendant Republic of Korea, expressed its intention of acceptance on the registration of cancellation of the establishment registration of a neighboring mortgage as stated in each of the above paragraph (a).

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

Cheong-gu Office

The same shall apply to the order.

1. Facts of recognition;

A. On November 4, 2010, the Plaintiff completed on November 4, 2010, the establishment registration of a mortgage on each of the real estates listed in the separate sheet owned by the Plaintiff (hereinafter referred to as the “instant real estate”) on November 4, 2010, on the basis of the contract to establish a contract, the maximum debt amount of KRW 1 billion, the debtor, the Plaintiff, and the Defendant JeongB, which was based on the order of the Plaintiff.

B. On January 14, 2011, Defendant AAB completed the attachment registration of each of the instant collateral security claims on October 14, 2013 on the ground that Defendant AB’s local tax delinquency was due to Defendant ABB’s national tax delinquency.

[Reasons for Recognition] Unsatisfy, Gap evidence 1-6, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 1, the purport of the whole pleadings

2. Determination

A mortgage is a mortgage established by settling only the maximum amount of the debt to be secured and reserving the determination of the debt in the future. Since it is established with the purpose of securing a certain limit from a settlement term for the future, a legal act establishing a secured claim of the right to collateral separate from the act of establishing the right to collateral, and the burden of proving whether there was a legal act establishing a secured claim of the right to collateral at the time of the establishment of the right to collateral is on the part of claiming its existence (see, e.g., Supreme Court Decision 2009Da72070, Dec. 24, 2009).

Meanwhile, in cases where a claim bearing a right to collateral security is seized, the purpose of registering the seizure of the right to collateral security by means of additional registration in the registration of the establishment of the right to collateral security is to publicly announce the seizure of the right to collateral security because the seizure of the right to collateral security becomes effective even in the right to collateral security, which is a subordinate right by the incidental nature of the right to collateral security, if the right to collateral security is seized. If the right to collateral security does not exist, the seizure order shall be null and void, and when the right to collateral security is cancelled, the third party with a interest in the registration shall express his/her consent to the cancellation of the right to collateral security (see, e.g., Supreme Court Decision 2003Da7041, May

On the other hand, there is no evidence to acknowledge that there was a legal act to establish the secured debt separate from the act of creation of the right to collateral security between the plaintiff and the defendant JungB. Thus, the defendant JungB is liable to implement the registration procedure of cancellation of the establishment of the right to collateral security, and the defendant AA Si and the defendant Republic of Korea are third parties with interest in the registration of the establishment of the right to collateral security, and each of the above third parties with the duty to express their consent.

Defendant Republic of Korea has no obligation to express his/her consent to the registration of cancellation as a bona fide third party in good faith who trusted the validity of the registration of creation of a neighboring mortgage of this case and completed the registration of seizure. However, in our legal system, the public trust of registration is not recognized, and there is no separate provision to protect the third party in good faith who trusted the nonexistent juristic act. Thus, the above assertion by Defendant Republic of Korea

Defendant AAB conspired with the Plaintiff and Defendant AB to form a false appearance for the purpose of evading compulsory execution from the obligees, and thereafter asserting the existence of the instant right to collateral security to the other obligees, and asserting again the absence of the said right to collateral security in the instant lawsuit is contrary to the principle of trust and good faith or the principle of good faith. However, in order to deny the exercise of the right on the ground that it violates the principle of trust and good faith, there must be a good faith provided to the other party or objectively, and the other party’s good faith should be deemed reasonable, and the exercise of the right against the other party’s good faith should reach the extent that it is not acceptable in light of the concept of justice (see, e.g., Supreme Court Decision 2005Da64552, Nov. 29, 2007). In this case, the Plaintiff’s assertion of invalidation of the instant right to collateral security has become unacceptable in light of the concept of justice, and it is difficult to deem it contrary to the principle of trust and good faith or the principle of good faith.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is justified, and all of them are accepted, and it is so decided as per Disposition.

Table 3

1. OOO Ri 2*-* Large 48 square meters in Pakistan;

2. OOO Ri 6* Large 904 square meters in Pakistan.

3. Ground on the land described in paragraphs (1) and (2).

[Road Name Address] OO in Papju City*

General steel structure reinforced concrete roofs 1, 2-class neighborhood living facilities

100.48m2 office per floor;

1 97.29m20m2

145.94 square meters general restaurants at 145m2

4. OOO Ri 2*--Road 9m20,000,000

5. OOO Ri 6*-* 256 square meters in Pakistan.

6. OOO Ri 6*-* 31 square meter on a road in Pakistan.