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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. The Plaintiff commenced the demanding procedure against B for the payment of the amount of KRW 56,823,652 against the Gwangju District Court Decision 2009Da48, 56,823, and damages for delay thereof, and received such payment order on January 16, 2009, and the said payment order was finalized on February 6, 2009.
B. B, while owning the real estate listed in the separate sheet (hereinafter “instant real estate”), on February 22, 2002, the registration of the establishment of a neighboring mortgage amount of KRW 15,000,000 (hereinafter “instant collateral security”) was completed on February 21, 2002, based on the contract concluded by the Defendant on February 21, 2002.
[Ground of recognition] Unsatisfy, entry of Gap evidence 1 and 2 (including virtual number), the purport of the whole pleadings
2. The parties' assertion
A. The Plaintiff’s assertion is invalid as the right to collateral security of this case was set falsely without the secured claim, and even if there were the secured claim, the secured claim existed.
Even if the contract to establish the right to collateral security was completed on February 21, 2012, the extinctive prescription of the right to collateral security has expired.
Therefore, the plaintiff is acting in subrogation of the right to claim cancellation of the right to claim cancellation of the mortgage against the defendant B as the creditor of B.
B. The defendant's assertion that the defendant lent KRW 10,000,000 to B on February 21, 2002, and KRW 5,000,000 on February 22, 2002 following the above, respectively, to B in cash, and received the creation of the right to collateral security of this case as the security.
In addition, the defendant has exercised the above credit by extending the repayment period of the above loan credit until December 20, 2005 and receiving the closing interest from B.
Therefore, the plaintiff's assertion that the secured claim of this case was nonexistent or extinguished by prescription is improper.
3. Determination
A. The burden of proving whether there was a legal act establishing the secured claim of the right to collateral at the time of establishment of the right to collateral security at the time of determining the non-existence of the secured claim.