(영문) 대구지방법원 2016.06.22 2016나300672

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(영문) 대구지방법원 2016.06.22 2016나300672

근저당권말소

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1. Revocation of the first instance judgment.

2. The defendant shall have the Changwon District Court as to the real estate stated in the attached list to B.

Reasons

1. Basic facts

A. According to the final judgment of Cheongju District Court Decision 2007Da12054, Cheongju District Court Decision 16,828,578 won with respect to B and 8,00,000 won among them, the Plaintiff (the Plaintiff) has a claim for the amount of 19% per annum from February 1, 2003 to April 3, 2007 and a claim for the amount of 20% per annum from the next day to the date of full payment.

B. On November 5, 1992, the Defendant completed the registration of establishment of a neighboring mortgage (hereinafter “registration of establishment of a neighboring mortgage”) on November 5, 1992, the debtor D, the mortgagee, the defendant, the maximum debt amount of KRW 75,00,000, which was due to the mortgage contract on November 5, 1992.

C. B is insolvent as of the date of closing argument in the trial.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 2, 4, and 6 (including the number, if any), the result of the order to submit taxation information about the Cheongju Tax Office, the fact-finding results on the Cheongju-si, and the purport of the whole pleadings

2. Determination as to the cause of action

A. The plaintiff's gist of the plaintiff's assertion is that the registration of the establishment of the creation of the neighboring mortgage of this case was based on ① false secured debt, or ② that the secured debt of this case was extinguished by prescription after the lapse of 10 years from November 5, 192 as of November 5, 192, the plaintiff sought cancellation of the registration of the creation of the neighboring mortgage of this case to the defendant, who is the mortgagee, in subrogation

B. 1) First, we examine whether the establishment registration of a neighboring mortgage of this case was based on the false secured debt. In the event that the establishment registration of a neighboring mortgage of this case was completed as in the instant case, it is presumed that the registration was lawful and publicly announced as to the real state of rights, and thus, the person who asserts that the registration was illegally made is liable to prove the opposing fact that the presumption was reversed (see Supreme Court Decision 2000Da72763, Apr. 10, 200).

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