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1. Revocation of a judgment of the first instance;
2. The plaintiff's claim is dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
Reasons
1. The following facts can be acknowledged, either in dispute between the parties, or in full view of the purport of the entire pleadings in the statement Nos. 1 and 2 as evidence A. A.
On January 23, 2007, the plaintiff filed a lawsuit against Eul (the Jeonju District Court Kim Jong-si Court 2006Gau12697) against which "B shall pay to the plaintiff 26,774,00 won and 17,479,400 won which shall be calculated by the rate of 17% per annum from April 1, 2005 to the date of full payment."
B. On January 10, 1996, the Defendant completed the registration of the establishment of a new mortgage in the name of the Defendant with the maximum amount of KRW 40,000,000, and the debtor B with respect to the apartment of this case owned by B as the result of the contract to establish a new mortgage.
2. The assertion and judgment
A. The registration of the establishment of a mortgage in the name of the defendant as to the apartment of this case alleged by the plaintiff is to be cancelled upon the extinction of the prescription period, or it is to be cancelled on January 10, 1996 between B and the defendant, which is based on the mortgage contract concluded by a false representation of agreement on January 10, 1996. Thus, the plaintiff seeks the defendant to pay for the cancellation registration procedure of the establishment of a mortgage of this case by subrogation of B.
B. In full view of the aforementioned evidence and evidence Nos. 2 and 6, the whole purport of the pleadings, as a whole, B was unable to repay not only the debt of the Plaintiff recognized for a long time but also the monetary debt of the Defendant at the time. Accordingly, it can be acknowledged that the auction procedure was commenced for the apartment of this case at the Plaintiff’s request, and there is no other evidence to find that B has any specific property to pay each of the above obligations. Thus, B is in insolvent as of the date of the conclusion of the pleadings in the trial, and the Plaintiff is in order to preserve the claim for the amount of the debt of the Plaintiff against B.