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1. Revocation of the judgment of the first instance, and the lawsuit of this case shall be dismissed;
2. All costs of the lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. On December 29, 2006, the Plaintiff agreed to borrow KRW 200,000,000 from the Defendant as follows.
(hereinafter referred to as “instant first-use and mortgage contract”). Interest rate of KRW 150,000 for a lump sum payment: 150,000 due date: The maximum debt amount for creation of a right to collateral security on June 30, 2007: 400,000,000 won shall be paid 1% per month for the principal and interest unpaid at 200,000 won after six months.
B. According to the first-use and mortgage contract of this case, the registration of the establishment of a mortgage on each of the real estates listed in the separate sheet owned by the Plaintiff (hereinafter “each of the instant real estates”) was completed on December 29, 2006, No. 162349, Dec. 29, 2006, for establishing a contract on December 29, 2006, the maximum debt amount of KRW 400,000,000 for establishing a contract on December 29, 2006, and the mortgagee as the Defendant.
C. However, the Plaintiff did not repay the principal and interest of the loan stipulated in the first-use and mortgage contract of this case. On June 23, 2008, the Defendant applied for an auction of real estate rent to the Jung-gu District Court D on each of the real estate of this case, and on which the Defendant stated in the application amount “amounting to 350,000,000 won, and damages for delay by 12% per annum from June 30, 2007 to the date of full payment.”
On June 24, 2008, the auction court rendered a ruling to commence the auction on each of the instant real estate, and set the date of the first sale on December 23, 2008. The Plaintiff provided an additional security equivalent to KRW 100,000,000 to the Defendant to postpone the auction procedure on each of the instant real estate.
Accordingly, on December 22, 2008, the Plaintiff borrowed KRW 100,000,000 from the Defendant as of June 30, 2007, and agreed to set up a collateral security with a maximum debt amount of KRW 100,000,000 to the Defendant (hereinafter “instant secondary-use and collateral security contract”), and the Defendant’s issuer, bill amount of KRW 100,000,00 to the Defendant.