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(영문) 창원지방법원마산지원 2016.01.06 2015가단102777
근저당권말소
Text

1. As to the real estate stated in the attached list to B, the Defendant shall have the Changwon District Court's Msan Branch, etc. on July 15, 1997.

Reasons

1. Basic facts

A. The Plaintiff filed a payment order with B, etc. as Seoul Central District Court 2010 tea103768, and on August 30, 2010, the Plaintiff received a payment order with the purport that “B, etc. shall jointly and severally pay to the Plaintiff 27,987,760 won and 21,950,010 won among them at the rate of 19% per annum from August 23, 1999 to the date of complete payment,” and the said payment order was finalized on September 25, 2010.

B. B, with respect to the real estate indicated in the separate sheet, owned by the Defendant, registered the creation of the right to collateral security (hereinafter “instant right to collateral security”) with the Changwon District Court No. 32734, Jul. 15, 1997, which was received on July 15, 1997, with the maximum debt amount of KRW 70,000,000 and the debtor

(c) B is currently insolvent.

[Ground of recognition] Facts without dispute, entry of Gap 1 and 3 evidence, fact-finding with respect to the head of Matunpo-si in this court, the purport of the whole pleadings

2. The assertion and judgment

A. The Plaintiff’s assertion B, in collusion with the Defendant, concluded a false mortgage contract, and thus, the establishment registration of the instant neighboring mortgage was null and void by means of false conspiracy, and even if the establishment registration of the instant neighboring mortgage is valid, the secured claim expired due to the completion of prescription.

Therefore, upon the plaintiff's request, the defendant is obligated to execute the procedure for registration of cancellation of the registration of the establishment of the mortgage of this case to B.

B. The Defendant’s assertion was lent KRW 50 million to B on July 15, 1997, and the loan claim was set up as the secured claim and the mortgage of this case was suspended, and the extinctive prescription of the secured claim was not yet completed.

C. At the time of establishment of the right to collateral security, the burden of proof as to whether there was a legal act establishing the secured claim of the right to collateral security has been asserted (see, e.g., Supreme Court Decision 2009Da72070, Dec. 24, 2009). As such, the Defendant bears the burden of proof, and the said secured claim is established.

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