2016Da5474 Registration of Rehabilitation of Mortgage

A

B

Suwon District Court Decision 2014Na12806 Decided November 26, 2015

July 29, 2016

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the District Court.

The grounds of appeal are examined.

1. Since the registration of the establishment of a neighboring mortgage is presumed to have been duly completed not by the act of directly applying for registration of cancellation of the right to collateral security but by the third party’s involvement in the act of the application, the former right to collateral security requesting registration of cancellation of the right to collateral security on the ground that the registration of cancellation is null and void shall bear the burden of proving the invalidity of the right to oppose the former right to collateral security, i.e., whether the third party did not have the right to act as a representative of the right to collateral security holder, or there are circumstances suspected of being suspected that the registration procedure has not run lawfully by forging the registration document of the right to collateral security holder (see, e.g., Supreme Court Decisions 93Da18914, Oct. 12, 193; 2015Da39180, Nov.

2. On May 31, 201, the lower court acknowledged that: (a) the Defendant concluded a mortgage agreement with the Plaintiff, the maximum debt amount of KRW 200 million, the obligor E, and the Plaintiff as to the instant real estate owned by the Defendant; (b) completed the registration of establishment of a mortgage on June 11, 201; and (c) the registration of cancellation of the establishment of a mortgage on the instant real estate was completed on the same day upon the request of F, claiming that the Plaintiff was authorized to act on behalf of the Plaintiff on August 17, 2011; and (b) there was no evidence to prove that the Defendant paid the Plaintiff the Plaintiff the obligation; (c) there was no evidence to prove that the Plaintiff did not contact or confirm the Plaintiff when filing an application for the registration of cancellation of the establishment of a mortgage on the instant real estate; and (d) the Plaintiff’s request for the registration of establishment of a mortgage on the instant real estate held in the name of another person, which was submitted by the Defendant for the cancellation of the registration of establishment of a mortgage on several occasions.

3. However, we cannot accept the above judgment of the court below.

A. Examining the facts acknowledged by the lower court in light of the legal doctrine as seen earlier, the registration of cancellation of the registration of the establishment of a mortgage of this case is applied by F on behalf of the Plaintiff, unless there are special circumstances.

Therefore, if the Plaintiff asserts that the registration of cancellation of the registration of the establishment of the instant neighboring mortgage against the Defendant, the real estate owner, is null and void, and claims the implementation of the procedure for the restoration registration, the circumstances, such as F, did not have the authority to represent the Plaintiff as to the application for the cancellation of the registration of the establishment of the instant neighboring mortgage, are proved by the Plaintiff.

B. On the other hand, the record reveals the following circumstances, which are difficult to readily conclude that the establishment registration of the neighboring mortgage of the instant case was cancelled without permission.

1) On May 27, 2011, when the Defendant sold the instant real estate to E, and did not receive any intermediate payment and any balance thereafter, the Defendant agreed to create a right to collateral security upon the request of E on the instant real estate subject to the condition of receiving registration documents for cancellation. Accordingly, the Defendant received the down payment from E on May 31, 201 and completed the instant establishment registration. Therefore, regardless of whether the instant establishment registration was performed against the Plaintiff, the instant establishment registration may be cancelled on the grounds of the nonperformance of the obligation to pay intermediate payment and any balance to the Defendant, and in fact, E was unable to pay the intermediate payment and any balance on the date agreed to by the Defendant on the agreed date.

2) On August 16, 201, F, upon undergoing an investigation by an investigative agency with regard to the cancellation of the registration of the establishment of the instant neighboring mortgage, stated that F was requested by E to cancel the registration of the establishment of the instant neighboring mortgage, and that F received the delegation of the Plaintiff’s name and the registration information in advance.

3) Although F was indicted for forging a private document in collusion with E by forging the power of attorney in the name of the Plaintiff and registering the cancellation of the registration of the establishment of the instant neighboring mortgage by forging the power of attorney, it cannot be deemed that F was obligated to directly verify to the Plaintiff on the ground that the power of attorney was issued to the Plaintiff in the name of the Plaintiff, and that E was unable to be known as having committed suicide on January 19, 2012 and whether F was in possession of the said document with any route, the judgment of innocence was pronounced and finalized on the ground that there was insufficient proof as to the facts charged by the prosecutor.

4) Meanwhile, as an employee of the Certified Judicial Scriveners H, I was indicted for the crime of aiding and abetting the original copy of a notarial deed, which made it easy for H to complete the registration of cancelling the registration of cancelling the registration of the establishment of the establishment of the instant neighboring facilities against the Plaintiff’s will at will, but J, who had worked together with I, testified to the Plaintiff at I’s instructions when E had discovered information on completion of the registration, etc., and when the Plaintiff testified to the effect that “I would return to the Plaintiff while the Plaintiff called E while getting off the documents.” In light of the above circumstances, the judgment of innocence was rendered and confirmed. In light of the above circumstances, the court below should have sufficiently deliberated on whether it can be recognized that the registration was cancelled without the cause of the establishment of the establishment of the instant neighboring facilities, and then should have determined whether to accept the Plaintiff’s claim according to the legal principle of the burden of proof.

Nevertheless, in light of the circumstances indicated in its holding, the lower court accepted the Defendant’s claim for registration of recovery of the establishment of a mortgage of this case under the premise that the Defendant bears the burden of proving that the registration of cancellation was effective, on the sole basis of the evidence submitted by the Defendant as to the application for registration of cancellation of the establishment of a mortgage of this case. In so doing, it erred by misapprehending the legal doctrine on the presumption of registration of cancellation and the burden of proof, thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of appeal

4. Therefore, without examining the remaining grounds of appeal, the part of the judgment below against the defendant is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim In-bok

Justices Park Jae-hee in charge

Justices Park Young-young

Justices Kim Jong-il