1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by each person;

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 October 16, 200 on the ground of “contract to establish a contract on October 13, 200,” which is the debtor B, the mortgagee of a mortgage, the defendant of a maximum debt amount of KRW 48,00,000.

B. On August 7, 2000 and May 15, 2001, the Plaintiff filed an application with the Gwangju District Court for a payment order seeking a prior reimbursement payment under the credit guarantee agreement against B, the Seoul District Court 2007Da2467, J. Gun Court 2000, and on August 8, 2007, the above court issued the payment order to the Plaintiff on August 25, 2007, stating that “B shall pay 42,00,000 won and damages for delay to 35,00,000 won,” and the above payment order was finalized on August 25, 2007.

[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 October 16, 200, 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. Legal doctrine is a mortgage established by setting only the maximum amount of an obligation to be secured and reserving the determination of an obligation in the future (Article 357(1) of the Civil Act). Since a security right is 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 a legal act establishing the secured claim of the right to collateral exists at the time the right to collateral was established.