2020Na13555 De-mortgage

A Co., Ltd. (formerly: AC Co.)

Law Firm Han-gu, Counsel for the plaintiff-appellant

Attorney Man-won

B A.

C. Stock Company

[Judgment of the court below]

Daejeon District Court Decision 2019Na104733 Decided July 10, 2020

2020, 15 October 15

November 2020, 5.

1. The part concerning Defendant B among the judgment of the court of first instance, including the Plaintiff’s claim extended by this court, is modified as follows. Defendant B Co., Ltd. is the Plaintiff:

A. As to each real estate listed in the separate sheet No. 1:

1) The Daejeon District Court implements the registration procedure for the establishment of a mortgage and for the cancellation thereof completed under No. 1516, Jan. 22, 2019, by the registration procedure for the establishment of a neighboring mortgage completed under No. 18203, Sept. 6, 2018, by the Hongsung Branch of the Daejeon District Court as of Sept. 6, 2018;

B. On August 21, 2018, with respect to each construction machinery listed in the separate sheet No. 2 list, the registration procedure for cancellation of the registration of the establishment of a collective security right completed with No. 420, Aug. 2

2. The defendant C's appeal is dismissed.

3. The total cost of the lawsuit between the plaintiff and the defendant corporation B shall be borne by the defendant corporation, and the cost of appeal between the plaintiff and the defendant corporation shall be borne by the defendant corporation.

1. Purport of claim

The disposition No. 1 A, B (the plaintiff extended the claim regarding each construction machinery listed in No. 8 through No. 14 of the attached Table 2 in this Court), and the defendant C Co., Ltd., with respect to each real estate listed in the attached Table No. 1, the plaintiff will implement the registration procedure for cancellation of the registration of the establishment of a neighboring mortgage completed on January 22, 2019 by the Daejeon District Court Hongsung Branch of the Daejeon District Court No. 1516.

2. Purport of appeal

A. The plaintiff;

Of the judgment of the first instance, the part against the Plaintiff is revoked. Defendant B Co., Ltd. shall implement the procedure for cancellation of registration of establishment of a collective security right, which was completed with No. 9 on August 21, 2018 with respect to construction machinery listed in attached Table 2 List 7, to the Plaintiff.

B. The Defendants

Of the judgment of the first instance, the part against the defendants shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Quotation of the first instance judgment

The reasoning of this Court concerning this case is as stated in the reasoning of the judgment of the court of first instance, except for the following modifications or partial alterations in the conclusion. Thus, the reasoning of appeal by the Defendants as to the secured obligation of each of the instant mortgages is not significantly different from the argument of the court of first instance, and the reasoning of appeal by the Defendants as to the secured obligation of the establishment registration of each of the instant mortgages is not consistent with the reasoning of the court of first instance, and the judgment of the court of first instance is justified even if the Defendants’ additional submission to this court

■ 2면 18행부터 3면 2행까지 부분을 아래와 같이 고쳐 씁니다.

가. 원고는 2018. 8. 21. 피고 주식회사 B(이하 '피고 B'라 합니다)에게 자신의 소유인 별지2 목록 제1 내지 6, 8 내지 14항 기재 각 건설기계(이하 '원고 소유 건설기계'라 합니다)와 당시 자신의 소유였던 별지2 목록 제7항 기재 건설기계(이하 'N 소유 건설기계'라 하고, 원고 소유 건설기계와 합쳐 '이 사건 각 건설기계'라 합니다)에 관하여 2018. 8. 21. 접수번호 D로 채권가액 10억 원의 근저당권설정등록(이하 '이 사건 근저당권설정등록'이라 합니다)을 마쳐주었습니다. 이후 원고는 2019. 7. 17. (유)N에게 'N 소유 건설기계'에 관하여 소유권 변경등록을 마쳐주었습니다. 3면 10행 [인정 근거]에 "갑 제10호증"을 추가합니다. 7면 17행부터 8면 5행까지 부분을 아래와 같이 고쳐 씁니다.다. 소결론

Since the establishment registration of each of the preceding units of the instant case is null and void because there is no secured debt, the owner of each of the instant real estate and each of the instant construction machinery and the party to the said mortgage contract have the right to file a claim for the cancellation of the said establishment registration with the mortgagee of each of the instant construction machinery (see Supreme Court en banc Decision 93Da1638 delivered on Jan. 25, 1994, 93Da16338

Therefore, the Plaintiff, who is the owner of each of the instant real estate and the instant construction machinery owned by the Plaintiff, as the party to a mortgage agreement on the “N-owned construction machinery,” and Defendant B is obligated to implement the registration procedure for cancellation of the establishment of the instant collective security right, and the Defendants are obligated to implement the registration procedure for cancellation of the establishment of the instant collective security right

2. The addition;

A. Claim on the secured claim under an investment agreement on October 12, 2018

The Defendants asserted that there is a claim based on the investment agreement concluded on October 12, 2018 between the Defendants and the Plaintiff as the secured claim for the registration of the establishment of each of the instant units of mortgage. The Defendants, based on the aforesaid investment agreement, invested KRW 4 billion to the Plaintiff, and delivered an agreement (No. 8, hereinafter referred to as the “instant investment agreement”) stating that the Defendants would return KRW 8 billion to the Plaintiff by December 30, 2018, plus KRW 4 billion to the investment principal. However, the Defendants’ assertion that there is no dispute, namely, the following circumstances, including the entry of evidence No. 8, and the purport of the entire pleading, are the actual operators of the Plaintiff and the Defendants at the time of around October 10, 2018, and the agreement of this case appears to have been prepared by the actual operators of the Plaintiff without any substantive formalities among the same companies. Accordingly, the Defendants’ assertion that the agreement of this case had no grounds to acknowledge that there is an investment risk of KRW 4 billion to the Plaintiff’s general agreement after the completion of the agreement.

B. Claim to approve debts

1) In consideration of the following circumstances, the Defendants asserted that the Plaintiff may be deemed to have approved the secured obligation of the establishment registration of each of the instant roots. On April 5, 2019, L Co., Ltd. (AD representative director) drafted a "Agreement on Transfer of Rights and Obligations to the Plaintiff (Evidence A)" (Evidence A) with the effect that the Plaintiff shall pay a total of 4 billion won in return for the transfer of rights and the waiver of rights to the Plaintiff. On May 10, 2019, the Defendants prepared a partial change of the method of transfer of shares (Evidence A 5) in the terms of the above Agreement (hereinafter referred to as "No. 5") with the Plaintiff's registration of establishment of a mortgage on April 5, 201 and the changed contract on May 10, 2019, the representative director of the instant corporation shall be deemed to have taken over the remainder of the Plaintiff's 3.6 billion won in exchange for the transfer of shares to the Plaintiff's 10.0 billion won in exchange for the transfer of shares.

2) However, even if the statements in Gap evidence Nos. 4, 5, and 1, which the defendants presented as evidence for debt approval, are merely agreements between L Co., Ltd. and Eul, and they cannot be viewed as agreements between the plaintiff and the defendants. The contents of the agreement are to cancel the limited real right established in the plaintiff's assets and transfer the plaintiff in full condition, and it is difficult to view this as an acceptance of debt. This part of the defendants' assertion is without merit. Furthermore, even if the plaintiff was assumed to have approved the debt as alleged by the defendants, it cannot be readily concluded that each of the creation registration of a neighboring mortgage of this case, which is null and void, is converted to the validity, or there was an agreement for utility of registration. Thus, the defendants' above assertion is without merit.

C. The assertion of violation of the good faith principle

The Defendants, even though L corporation agreed to pay 4 billion won to E and cancel the registration of creation of the instant root, L corporation’s seeking the cancellation of the registration of creation of each of the instant location of the instant case without paying all obligations under the instant share acquisition agreement is contrary to the good faith principle. However, there is no evidence to prove that L corporation has a debt not repaid to E, as alleged by the Defendants. Even if the Plaintiff, not a party to the instant contract, claims the cancellation of the registration, which is invalid as the cause of the instant acquisition, cannot be deemed to contravene the good faith principle. The Defendant’s assertion on this part is rejected.

3. Conclusion

Thus, the plaintiff's claim shall be accepted on the ground of its reasoning. Since the judgment of the court of first instance is partially unfair on the ground of its conclusion, the plaintiff's appeal and the claim extended by this court shall be accepted, and the part of the judgment of first instance as to the defendant Eul among the judgment of first instance shall be modified as per Disposition, and the defendant

The presiding judge, Park Jong-young

Judge Lee Jae-soo

Judges Kim Gin-sik