Msan support-2014-Gab-1792 ( October 26, 2015)

There is no evidence to acknowledge whether there was a juristic act establishing the secured claim, and the establishment registration of a mortgage is invalid when there is no secured claim.

Since there is no evidence to prove whether there was a legal act establishing the secured claim of the right to collateral security separately from the act of establishing the right to collateral security, the defendant BB must cancel the registration of establishment of the right to collateral security of this case, and the defendant Republic of Korea must express its consent to the registration of cancellation.

Supreme Court Decision 2009Da72070 Decided December 24, 2009

2015Na34844 Cancellation of the right to collateral security

AA

Korea

Changwon District Court Decision 2014Kadan1792 decided August 26, 2015

December 17, 2015

January 21, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Plaintiff: (a) the Co-Defendant AA of the first instance trial (hereinafter referred to as the “AAA”) performed the procedure for registration of cancellation of the establishment registration of a neighboring establishment that was completed on February 8, 2007 with respect to the registration of cancellation of the establishment registration of a neighboring establishment, which was completed on February 8, 2007 by the Changwon District Court, Muwon District Court, Muwon District Court, 2000 large scale 631 square meters in Changwon-si BB, Changwon-si; and

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked. The plaintiff's claim against the defendant shall be dismissed.

1. Quotation of judgment of the first instance;

The court's explanation on this case is consistent with the reasoning of the judgment of the court of first instance, except in the following cases: (a) No. 17 and No. 19 of the judgment of the court of first instance; and (b) therefore, it cited this as is in accordance with the main sentence of Article 420 of the Civil Procedure

○ Parts of Cuts

In the instant case where the Plaintiff argued that the secured claim itself does not exist at the time of the registration of the establishment of the instant mortgage, the burden of proof on the existence of the secured claim of the instant right to collateral lies with the Defendant asserting the existence thereof. However, it is insufficient to recognize that there was a legal act between Cho River and AAA, a mortgagee of the instant right to collateral security, at the time of the completion of the registration of the establishment of the instant right to collateral security separately from the act of the establishment of the instant right to collateral security, or that AAA had the secured claim of the instant right to collateral security, and there is no other evidence to acknowledge this.

Therefore, the seizure order is also null and void if there is no secured claim of the instant right to collateral security, and AA shall cancel the registration of establishment of the instant collateral security, and when cancelling the instant right to collateral security, the Defendant, a third party with an interest in the registration, is obligated to express his/her consent to the cancellation of the registration of establishment of the instant right to collateral security.

2. Conclusion

Thus, the plaintiff's claim of this case against the defendant is justified, and the court of first instance shall accept it.

As such, the defendant's appeal is dismissed as it is justifiable in conclusion.

this decision is delivered with the judgment of the court below.