(영문) 부산지방법원 2018.11.23 2018가단1601

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(영문) 부산지방법원 2018.11.23 2018가단1601

근저당권설정이전등기말소

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1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Facts of recognition;

A. On June 29, 2006, D entered into a mortgage agreement with the deceased as to the real estate stated in the purport of the claim (hereinafter “instant real estate”) that he/she owned as a security of KRW 30,000,000 against the deceased’s obligation to the deceased (hereinafter “the deceased”). Furthermore, with respect to the instant real estate, D/W completed the registration of creation of a mortgage stated in the purport of the claim (hereinafter “instant mortgage”) with regard to the deceased’s claim amounting to KRW 30,000,000.

B. After that, on September 14, 201, the Defendant, the deceased’s heir on the instant real estate on September 14, 201, was the additional registration of the instant collateral security transfer due to inheritance due to consultation and division on September 23, 2011.

C. Meanwhile, on August 18, 2017, D entered into a sales contract with the Plaintiff to sell the instant real estate at KRW 139,80,000 (hereinafter “instant sales contract”) and the Plaintiff, the buyer, agreed to acquire KRW 30,000,000 for the secured debt of the instant right to collateral security (the cancellation of the instant right to collateral security and the repayment of the said secured debt) and to deduct the amount from the said payment (the simultaneous performance). Accordingly, D received from the Plaintiff the remainder after deducting KRW 30,00,000 from the said payment, and completed the registration of ownership transfer in the future of the Plaintiff on August 25, 2017.

In addition, D, on September 12, 2017, prepares a debt certificate stating that the deceased’s inheritors, including the Defendant, sold the instant real estate to the Plaintiff without paying KRW 30,000,000,000, and completed the registration of ownership transfer in the future. As such, D received the above KRW 30,000,000 from the sale price after deducting the amount of KRW 30,000 from the buyer’s heir. Thus, D shall confirm that the deceased’s heir is a claim that should have been paid by the buyer.

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