(영문) 광주지방법원 2016.11.30 2016가단27479

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(영문) 광주지방법원 2016.11.30 2016가단27479

근저당권설정등기말소

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1. The plaintiff (appointed)'s claim is dismissed.

2. The costs of lawsuit shall be borne by the plaintiff (appointed party).

Reasons

1. Determination as to the plaintiff (appointed party)'s claim

A. Since the Plaintiff (Appointed Party) and the appointed parties repaid the secured debt of the registration of establishment of a mortgage near the claims stated in the purport of the claim, the Defendant is obligated to cancel the registration of establishment of a mortgage near the above area.

B. On October 5, 2015, 1) Selection Parties C, D, and E borrow KRW 200,000 from the Defendant as interest rate of KRW 2.5% per annum and on January 5, 2016, and they own one-third shares of each of them, B forest land 25351 square meters per annum (hereinafter “instant land”).

(2) As to the registration of creation of a mortgage on the part of the Defendant’s claim against the mortgagee, the Plaintiff (Appointed Party) remitted the amount of KRW 200,000,000 from the account under his own name to the account under the name of the Defendant, and KRW 60,000,000 on January 26, 2016 to the account under the name of the Defendant.

3) Of the instant land, E’s share was transferred to the Plaintiff (Appointed Party) on July 21, 2016. [The fact that there is no dispute over grounds for recognition, and the statement in Gap evidence 1, 2, and 5, respectively.

C. According to the above facts of recognition, the Plaintiff (Appointed Party) appears to have subrogated for the obligation of C, D, and E, but on the other hand, since some of the 200,000,000 won paid by the Plaintiff (Appointed Party) from October 5, 2015 to the date of the above payment, is first appropriated for the interest of the borrower under Article 479 of the Civil Act, and thus, there exists the principal equivalent to the interest as of the date of the closing of argument. Thus, the Plaintiff’s assertion of the Plaintiff (Appointed Party) seeking cancellation of the registration of creation of mortgage on the part of the claim on the premise that the secured obligation was fully repaid, is without merit.

2. It is so decided as per Disposition by the assent of all participating Justices on the bench.

참조조문

-민법 제479조

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