(영문) 인천지방법원 2017.12.15 2017나58611

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(영문) 인천지방법원 2017.12.15 2017나58611

근저당권설정등기말소

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1. The plaintiff's appeal is dismissed.

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

Purport of claim and appeal

The first instance court.

Reasons

1. Determination as to the cause of claim

A. Although the Plaintiff’s assertion C had expressed an intention to offer the instant apartment as a security for the Defendant’s loan obligation of KRW 100 million against the Defendant, the Plaintiff made a false statement that “The Plaintiff would pay interest of KRW 500,000 won per month for six months in order to obtain a loan of KRW 60,000,000 per month, so that the instant apartment may be used as a security,” and that it made the Plaintiff enter into a mortgage contract with the Defendant, and completed the registration of the establishment of a mortgage near the instant apartment.

Therefore, the Plaintiff cancels the mortgage contract due to deception, and seeks a registration procedure for cancellation of the registration of the establishment of the mortgage of this case against the Defendant.

B. The Plaintiff concluded a contract to establish the right to collateral security with the Defendant on January 18, 2016 regarding the instant apartment, and the Plaintiff’s establishment of the right to collateral security to the Defendant on January 19, 2016 is deemed as either indicated in the evidence Nos. 4 and 8, or there is no dispute between the parties.

In cases where a third party commits fraud with respect to an expression of intent of the other party, C, only if the other party knew or could have known such fact, may cancel such declaration (Article 110(2) of the Civil Act), and Article 110(2) of the Evidence Nos. 6 and 7 of the Civil Act, by which

It is difficult to view that the Defendant knew or could know C’s deception, and there is no other evidence to acknowledge it.

Therefore, the plaintiff's above assertion is without merit.

2. In conclusion, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

참조조문

-민법 제110조 제2항

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