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(영문) 서울북부지방법원 2015.07.07 2015가단2543 (1)
근저당권설정등기말소등
Text

1. On July 23, 2013, the Defendant issued a registry office of the Seoul Central District Court with respect to the real estate stated in the attached list to the Plaintiff.

Reasons

1. On July 23, 2013, the Plaintiff completed the registration of creation of a mortgage (hereinafter “instant mortgage”) with respect to the real estate listed in the separate sheet owned by the Plaintiff (hereinafter “instant real estate”) on the Defendant, the Plaintiff issued and issued a promissory note stated in the separate sheet (hereinafter “instant promissory note”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. On July 23, 2013, the Plaintiff’s summary of the Plaintiff’s assertion: (a) provided that the Defendant lent KRW 15 million to the Plaintiff; and (b) issued and delivered the instant promissory note to the Defendant as security; (c) however, the Defendant did not have paid any money to the Plaintiff up to the day.

Therefore, the instant promissory note should be cancelled because it does not have the secured claim, and the instant promissory note should also be returned.

B. In the event that the Plaintiff claims the non-existence of the secured claim and seeks the cancellation of the registration of creation of a neighboring mortgage, the burden of proving the existence of the secured claim shall be borne by the Defendant.

In light of the above legal principles, the Defendant lent money to the Plaintiff.

There is no evidence to prove that the secured claim of the instant right to collateral security has occurred, and thus, it cannot be deemed that the Plaintiff’s obligation to the Defendant was incurred as the secured obligation of the instant right to collateral security and promissory note.

Therefore, the instant promissory note should be cancelled, and since the Defendant cannot be deemed to have a legitimate authority to possess the instant promissory note, the instant promissory note must be returned to the Plaintiff.

3. In conclusion, each of the claims of the plaintiff in this case shall be accepted on the grounds of all the claims, and it is so decided as per Disposition.

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