The cancellation of mortgage;

Whether the extinctive prescription of the instant obligation has expired

The contents of the judgment are the same as attachment.

2017 Gaz. 103 Gaz. Doz.

L**

Cho*** Foreign1

October 12, 2017

November 16, 2017

1. The Plaintiff:

A. Defendant Cho* implements the procedure for registration of cancellation of the establishment of a mortgage near the establishment of a mortgage completed on August 24, 1993 by Cheongju District Court, Chungcheong District Court, Chungcheong District Court, Chungcheong District Court, Chungcheong District Court, Cheongju, 23483, regarding the real estate listed in the separate sheet

B. The defendant Republic of Korea has expressed its intention to accept the above registration of cancellation.

2. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant Cho* is borne by Defendant Cho*, and the part arising between the Plaintiff and the Defendant and the Republic of Korea is borne by each party.

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

가. 원고는 윤$$로부터 2014. 2. 21. 별지 목록 기재 부동산(이하 '이 사건 부동산'

이라 한다)에 관한 소유권을 이전받았는데, 이 사건 부동산에는 윤$$ 이전 소유자였

던 주식회사 @@(이하 '@@'라 한다)를 채무자로 하여 청주지방법원 청주지방법원 충주지원 1993.

8. The mortgage of this case (hereinafter referred to as "the mortgage of this case") by the defendant Cho* under the name of 23483 received on 24.2.

The registration of establishment of a right was completed.

B. On August 9, 2016, Defendant Republic of Korea seized the instant collateral security claim; and

The registration was completed on August 16, 2016.

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. The assertion and judgment

A. Summary of the plaintiff's assertion

(1) 이 사건 근저당권설정등기는 @@의 경영상황이 악화되면서 다른 채권자들에

of this case’s real property is likely to be subject to compulsory execution without any actual debt relationship.

J* * The registration of the establishment of a mortgage in the name of

여 말소되어야 한다. @@는 그 소유 충주시 가주동 443-2 대 354㎡에 관하여도 같은

경위로 송QQ 명의로 근저당권설정등기를 마쳐주었는데, 송QQ은 2014. 5.경 자발적

In this regard, the registration of the establishment of neighboring mortgage was cancelled.

(2) Even if there was an obligation secured by the registration of the establishment of the instant neighboring mortgage, the extinctive prescription was completed due to Defendant Cho*’s failure to exercise its rights for at least ten (10) years. Meanwhile, since 2016, there was a fact that the % of the Plaintiff’s mother’s interest rate, who was the mother, was in contact with Defendant Cho** and was seeking to cancel the registration of the establishment of the instant neighboring mortgage, but this did not have been obtained the right of representation from the Plaintiff or obtained the Plaintiff’

B. Summary of the defendants' assertion

이 사건 근저당권설정등기는 원고의 아버지와 고모가 운영하던 @@가 피고 조준식이 운영하던 식당을 인수하면서 그 대가로 승용차를 지급하기로 하였다가 그것이 이행되지 않아 담보로 설정된 것이어서 피담보채무가 존재하고, 원고의 장모 이%%이 원고를 대리하여 피고 조**과 사이에 위 피담보채무의 액수에 관하여 협의를 하였으므로, 이는 소멸시효이익의 포기에 해당한다. 원고의 장모가 굳이 원고가 해외에 나가 있는 사이에 원고의 허락 없이 이와 같은 협의를 하였다는 것은 상식적으로 이해하기 어렵고, 원고가 알려주지 않았다면 피고의 연락처나 주소를 알 수도 없다.

C. Determination

A mortgage is a mortgage established by setting only the maximum amount of a debt to be secured and reserving the determination of a debt in the future (Article 357(1) of the Civil Act). Since a security right is established for securing a certain limit from a continuous settlement term for 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 security. The burden of proving whether a legal act establishing a secured claim of the right to collateral security has occurred at the time of the establishment of the right to collateral security (see, e.g., Supreme Court Decision 2010Da22774, Jul. 22, 2010).

As to the instant case, it is difficult to recognize that there was a juristic act which establishes the secured debt of the instant registration of the establishment of a new collateral solely with the statement of No. 2, and there is no other evidence to acknowledge it. Therefore, the registration of the establishment of a new collateral of the instant case must be cancelled with the registration that does not exist the secured debt, and the Defendant Republic of Korea, who is an interested party, has the duty to express his consent

3. Conclusion

Thus, the plaintiff's respective claims against the defendants of this case are reasonable and acceptable.

this decision is delivered with the judgment of the court.