(영문) 서울중앙지방법원 2017.11.24 2017가단5131137

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(영문) 서울중앙지방법원 2017.11.24 2017가단5131137

근저당권말소

Text

1. The plaintiff's claim is dismissed.

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

Reasons

1. Basic facts

A. On October 31, 2005, Nonparty B entered into a mortgage agreement with the Defendant on KRW 15,000,000 with respect to the real estate listed in the separate sheet (hereinafter “the instant real estate”). On the same day, Nonparty B concluded a mortgage agreement with the Defendant on October 31, 2005 with regard to the instant real estate, the registration of the establishment of a mortgage was completed on October 31, 2005, under the receipt of 448444.

B. The Plaintiff filed a lawsuit against B, etc. against the Seoul Central District Court (Seoul Central District Court Decision 2013Da5657932). On November 22, 2013, the said court rendered a favorable judgment against the Plaintiff that “The Defendants jointly and severally paid to the Plaintiff the amount of KRW 43,289,689 and KRW 11,334,00,00 per annum from June 10, 2013 to November 7, 2013; and KRW 19% per annum from the next day to the day of full payment.” The said judgment became final and conclusive around that time.

[Grounds for Recognition: entry in the evidence of subparagraphs 1 through 3, the purport of the whole pleadings]

2. The parties' assertion

A. The Plaintiff’s assertion that the right to collateral security on the instant real estate does not exist, and even if not, the right to collateral security on the instant real estate was extinguished due to the completion of prescription after the lapse of three years, and the Defendant cannot be a ground for interruption of prescription by filing a lawsuit claiming payment against B, which was later on December 23, 2008. Thus, upon the Plaintiff’s subrogation in order to preserve the right to collateral security on the instant real estate, the Defendant is obliged to perform the registration procedure for cancellation of the registration of the establishment of collateral security on the instant real estate at the request of the Plaintiff who subrogated B.

B. The defendant's assertion that the defendant filed a lawsuit against B on the claim secured by the right to collateral security of this case against B and obtained a favorable judgment, and thus, he did not have any obligation to cancel the registration of establishment of the right to collateral

3. Determination

A. The lawsuit filed by the creditor against the third party on behalf of the debtor and the judgment has already become final and conclusive.

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