1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

1. Basic facts

A. As to the instant real estate owned by B, the registration of creation of a mortgage in the instant case was completed on December 11, 2003, based on the “contract to establish a contract on December 8, 2003,” which is the debtor B, the mortgagee of a mortgage, the defendant of a maximum debt amount of KRW 40,000,000.

B. On December 8, 2001, the Plaintiff filed a request with the Gwangju District Court for a payment order seeking reimbursement for reimbursement on the ground of credit guarantee agreement as of December 8, 2001, and the subrogation as of November 30, 2010, with respect to B, the said court issued a payment order to the Plaintiff on February 24, 201, stating that “B shall pay the Plaintiff KRW 35,69,492 and delay damages,” and the said payment order became final and conclusive on March 15, 2011.

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

2. The plaintiff's assertion

A. The secured claim of the instant right to collateral security does not exist from the beginning.

B. Even if the secured debt of this case was established, the secured debt of this case was established.

In addition, the extinctive prescription has expired after the lapse of at least ten years from December 8, 2003, which is the date of establishment.

C. Therefore, the registration of the establishment of a neighboring mortgage of the instant case must be cancelled.

The plaintiff, as a creditor against B, seeks the cancellation of the registration of the establishment of the neighboring mortgage of this case by subrogation of B.

3. Determination

A. The relevant legal doctrine is a mortgage established by setting only the maximum amount of the debt to be secured and reserving the determination of the debt in the future (Article 357(1) of the Civil Act). Since it is a security right established to secure a certain amount of unspecified claims arising from a continuous transaction relationship in the future, there must be a legal act establishing a secured claim of the right to collateral separate from the act of establishing the right to collateral, and the burden of proof as to whether there was a legal act establishing the secured claim of the right to collateral at the time of establishment of the right to collateral.