Tong Young-gu 2015Kadan7267 ( October 13, 2016)

Whether the registration of collateral security transfer is valid

Since the registration of transfer of the right to collateral security cannot be recognized as a legal act establishing the secured claim of the right to collateral security, it constitutes invalid.

Article 357 of the Civil Act: Collateral security

2016Na58427 Demurrer against distribution

Plaintiff, Appellants

IsaA

Republic of Korea and 2

Tong-young 2015 Ghana 7267

May 17, 2017

June 28, 2017

1. Revocation of the part against the plaintiff falling under the following correction of the distribution schedule among the judgment of the first instance;

section 3.

OO지방법원 OO지원 2014타경XXXX호 2015타경XX호(중복)부동산 임의경매 사건

of the dividend table prepared on October 7, 2015 by the same court with respect to this section, the amount of dividends against Defendant GangwonB

32. The Plaintiff shall delete the amount of dividends for the Defendant’s Republic of Korea, 17, 160 won, respectively.

50, commercialization, or 00 won shall be corrected to be distributed.

2. DefendantCC’s appeal is dismissed.

3. The total costs of litigation between the Plaintiff, Defendant KangB, and Korea are borne by Defendant KangB and Korea.

The appeal cost between the plaintiff and the defendant CC shall be borne by the defendant CC.

1. Purport of claim

OO지방법원 OO지원 2014타경XXXX호 2015타경XX호(중복)부동산 임의경매 사건

of the dividend table prepared on October 7, 2015 by the same court with respect to this section, the amount of dividends against Defendant GangwonB

32. Distribution for the defendant's Republic of Korea, commercialization, 840 won, dividends for the defendant's Republic of Korea 17, commercialization, 160 won, and dividends for the defendant

The amount of 49, 614 won shall be deleted, and the amount shall be corrected to distribute 9, 9, 641 won to the Plaintiff.

(c)

2. Purport of appeal

A. The plaintiff

The same shall apply to the order.

B. Defendant ACC

In the judgment of the first instance court, the part against Defendant CC shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the judgment of the court in this case is as stated in the reasoning of the judgment of the court of first instance, except for the parts written by the court in paragraph (2) below, and thus, they are cited by the main sentence of Article 420 of the Civil Procedure

2. Parts to be dried;

○ A written judgment of the first instance court shall be conducted from 4 to 3 pages 7 as follows.

B. Determination as to the claim against Defendant KangB

1) A mortgage is a mortgage created by setting only the maximum amount of the debt to be secured and reserving the determination of an obligation in the future (Article 357(1) of the Civil Act). Since a security right is established to secure a certain limit in a future settlement term, there is a legal act establishing a secured claim of the right to collateral separate from the act of establishing the right to collateral security. The burden of proof as to whether a legal act establishing a secured claim of the right to collateral security has occurred at the time the right to collateral security was established (see Supreme Court Decision 2010Da107408, Apr. 28, 2011).

2) According to the evidence Nos. 1, 1, 2, and 4, the fact that Defendant GangnamB remitted Does to Doese on July 11, 201, 12, 19, 19, 100 won to Doese on two occasions. However, considering the fact that, while lending 35, 300 won to Doese and lending Doese to Doese on two occasions, only the amount different from loans of 9, 9, 9, 9, 9, 000 won is remitted, the above facts and the fact that Doese-B transfers only the amount different from loans of Doese-I, 1, 2, and 3, the mere fact that Doese-B stated in the evidence Nos. 35,000,000 won to Does on July 2, 2011 is insufficient to recognize the establishment of the secured claim No. 35,000 won under the name of the mortgage.

3) Ultimately, the registration of the transfer of the instant right to collateral security in the name of Defendant KangB is null and void, and the distribution of the dividends is null and void based on the invalid right to collateral security. Therefore, the Plaintiff’s claim against Defendant KangB is with merit.

C. Determination on the claim against Defendant Republic of Korea

The registration of the transfer of the instant right to collateral security in the name of the Defendant KangB is null and void, and the subsequent dividends against Defendant KangB are also null and void. As such, the Plaintiff’s claim against the Defendant Republic of Korea is also void as dividends against the Defendant’s right to claim dividends.

○ Written judgment of the first instance court No. 9 No. 17 shall be executed in the following manner:

E. Sub-decision

Therefore, from among the instant distribution schedule, the amount of dividends against Defendant Gangwon-B should be deleted, 32, 32, 840, 17, 160, 49, 614, and 614, respectively, and the amount of dividends against Defendant Gangnam-B among the instant distribution schedule.

3. Conclusion

Therefore, the plaintiff's claim of this case should be accepted on the ground of its reasoning, and since the part against the plaintiff in the judgment of the court of first instance which partially different conclusions is unfair, the plaintiff's claim of this case is revoked and the amount of dividends against the plaintiff, defendant KangB and Korea are corrected as above, and the appeal by the defendantCC is dismissed as it is without merit. It is so decided as per Disposition