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(영문) 서울고등법원 2016.01.28 2014나11101
근저당권설정등기 말소
Text

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The purport of the claim and appeal is the purport of the appeal.

Reasons

The reasoning of the judgment of the court of first instance cited this case is as stated in the reasoning of the judgment of the court of first instance, except for the parts added or modified under paragraph (2) below, and thus, it is acceptable in accordance with the main sentence of Article 420

The following shall be added in front of the first instance judgment of the first instance, which is amended or added:

Where registration has been made with respect to a certain real estate, such registration shall be presumed to have been made lawfully in the cause and procedure unless there are any special circumstances (see Supreme Court Decision 2001Da72029, Feb. 5, 2002). Thus, the person who requests the cancellation of such registration on the ground that the registration is null and void shall bear the burden of proving the invalidation of the document, such as the forgery of the registration document by a third party, etc.

On the seventh and third sides of the judgment of the first instance, the following shall be added:

D. Plaintiff A, a husband, provided his seal imprint and a certificate of personal seal impression to Plaintiff A on the ground that it is necessary to extend the due date for payment of the existing collateral security obligation for the instant real estate. Plaintiff A had registered the establishment of the first and second collateral security right for the instant real estate without Plaintiff B’s permission. Therefore, Plaintiff B asserted that the registration of the establishment of the first and second collateral security right for the instant real estate constitutes an act of unauthorized Representation and thus, it is difficult to believe that K’s factual confirmation (Evidence A No. 38) was consistent with Plaintiff B’s assertion, and there is no other evidence to acknowledge that Plaintiff A prepared documents related to the establishment of the collateral security right without Plaintiff B’s consent. Accordingly, Plaintiff B’s above assertion is without merit.

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