2019Gahap244 Action of demurrering a debt, such as confirmation of non-existence of a collateral security obligation

A

B

September 6, 2019

October 25, 2019

1. The Defendant shall implement the registration procedure for cancellation on March 18, 2019, with respect to the registration of establishment of a mortgage in the vicinity of the Daejeon District Court Branch of the Daejeon District Court, which was completed as No. 57366, Jun. 22, 2016, with respect to each real estate listed in the separate sheet to the Plaintiff.

2. This Court approves a decision to suspend compulsory execution on April 2, 2019 with respect to the case of applying for the suspension of compulsory execution 2019 Chicago10.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

Order.1)

1. Basic facts

A. C and D owned 1/2 shares of each of the respective real estates listed in the separate sheet (hereinafter “each of the instant real estates”) from May 30, 2016.

B. C and D: (a) on June 22, 2016, the maximum debt amount of each of the above immovables was KRW 220,000,000 with respect to the Defendant; (b) the obligor and the mortgagee were the Defendant; (c) the obligor and the mortgagee were the Defendant, and (d) the registration of creation of a neighboring mortgage as set forth in Paragraph (1) of the Disposition (hereinafter “the creation of a neighboring mortgage”) was completed on June 21, 2016.

C. On March 29, 2017, the Plaintiff purchased all of the instant real estate shares from C and D, and completed the registration of ownership transfer based on sale.

D. On March 18, 2019, the Plaintiff deposited 220,000 won, which is the maximum debt amount of the right to collateral security, with the Defendant as a depositee.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2 (including branch numbers, if any; hereinafter the same shall apply), the purport of the whole pleadings

2. Summary of the parties' arguments;

A. Summary of the plaintiff's assertion

The Plaintiff, as a third acquisitor of each real estate of this case, deposited the full maximum debt amount on March 18, 2019, and thus, the Defendant is obligated to cancel the registration of creation of a mortgage of this case.

B. Summary of the defendant's assertion

Since the defendant has additional claims of KRW 104,290,638 against E, a debtor under the former owner C, D, and collateral security, he/she cannot comply with the plaintiff's request for the performance of the procedure for cancellation registration.

3. Relevant legal principles

A third party who acquired the ownership of an immovable property may repay the debt secured by the mortgaged to the mortgagee and claim for the extinction of the mortgage (Article 364 of the Civil Act). The scope of the amount of the debt secured by the floating mortgage shall be limited to the maximum amount of debt determined in the contract to establish the floating mortgage among the claims finalized during the period for the settlement of accounts, and the amount of the debt exceeding the maximum amount shall not be secured, and the purport of the maximum amount of the debt to be secured shall also be interpreted as mentioned above (see, e.g., Supreme Court Decision 71Da26, Apr. 6, 1971).

4. Determination

The Plaintiff is a third acquisitor who acquired the ownership of each of the instant real estate created by the right to collateral security. In light of the aforementioned legal principles, the Plaintiff may, pursuant to Articles 364 and 357 of the Civil Act, claim the extinguishment of the mortgage by repaying the amount equivalent to the maximum debt amount of the relevant right to collateral security and claiming the extinguishment of the mortgage. However, on March 18, 2019, the Plaintiff deposited KRW 220,000, which is the amount equivalent to the maximum debt amount of the right to collateral security, with the Defendant as a depositee, as seen earlier, as seen earlier. Therefore, the Defendant, regardless of whether the former owner C, D, and the debtor E have additional claims, is obligated to perform the procedure for registration of cancellation of the right to collateral security

5. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

The presiding judge and the lowest judge;

Judges fixed-age

Judges Gin Young-young

1) The plaintiff stated in the purport of the claim the grounds for cancellation of the registration of creation of a mortgage near the purport of the claim as "payment", but it stated the grounds for cancellation as "payment deposit" in light of the grounds for the claim

such request shall be deemed to be made and determined.