(영문) 서울중앙지방법원 2018.11.08 2018가단13262

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(영문) 서울중앙지방법원 2018.11.08 2018가단13262

근저당권말소

Text

1. The defendant shall receive, on May 4, 2007, the Daejeon District Court, Daejeon District Court, Daejeon District Court with respect to the area of 34.7 square meters in Jung-gu, Daejeon.

Reasons

1. Facts of recognition;

A. On September 25, 2017, the Plaintiff applied for a payment order against B with the Daejeon District Court 2017 tea23103, and issued a payment order with the effect that “B shall pay to the Plaintiff 32,902,239 won and 7,739,542 won per annum 29.2% per annum from September 22, 2017 to the date of full payment, and from September 22, 2017 to the date of full payment, 161,77 won with the interest of 25% per annum from September 22, 2017 to the date of full payment.” The above payment order became final and conclusive around that time.

B. On May 4, 2007, B completed on May 2, 2007, the registration of creation of a neighboring mortgage on the ground of the contract on May 2, 2007 with respect to the real estate owned by the Defendant (hereinafter “the instant real estate”) as indicated in the disposition (hereinafter “registration of creation of a neighboring mortgage”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, and 3, the purport of the whole pleadings

2. The parties' assertion

A. In light of the fact that there was no trace that the Defendant intended to implement the said mortgage until about 11 years have passed since the completion of the establishment registration of the instant collateral, the establishment registration of the instant collateral did not exist due to the repayment of the secured debt, etc., or even if the secured debt exists, the ten-year extinctive prescription expired, and thus, the Plaintiff seek for the cancellation of the establishment registration of the instant collateral in subrogation of B as the creditor of the instant claim against B.

B. The summary of the defendant's assertion has lent approximately KRW 30 million to B several times, and since the mortgage of this case was created to secure this, it was not repaid yet, the secured claim actually exists.

Since the defendant urged B to make a verbal repayment and also approved B's obligation, the extinctive prescription of the secured debt of the instant right to collateral security has been suspended.

3. Determination

A. First, as to the debtor B's insolvency, between the parties.

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