(영문) 서울서부지방법원 2015.04.30 2014가단13894

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(영문) 서울서부지방법원 2015.04.30 2014가단13894

근저당권말소

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1. The plaintiff's claim is dismissed.

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

Reasons

1. Facts of recognition;

A. The Defendant is engaged in the breeding of pigs with the trade name of “C”, and D is engaged in the wholesale and retail business with the trade name of “E”.

B. On July 30, 2013, the Defendant: (a) demanded a security to deliver pigs via Samsung F&D; and (b) completed on July 30, 2013, the registration of creation of a mortgage on the real estate listed in the separate sheet owned by the Plaintiff (hereinafter “instant real estate”) around the obligor, the Plaintiff, and the mortgagee’s right to collateral security (hereinafter “instant collateral security registration”).

C. The Defendant’s price for the goods that was not received from D reaches KRW 68,357,442 around August 20, 2013.

[Ground of recognition] Gap evidence 1, 2, Eul evidence 1 to 3, witness F's testimony

2. The plaintiff's assertion and judgment

A. On July 24, 2013, the Plaintiff asserted that the instant real estate was sold to KRW 270,000,000 to a purchaser introduced through a real estate brokerage office. Of them, the Plaintiff agreed to pay KRW 170,000,000 after deducting KRW 170,000,000 from the deposit for the deposit for the lease on a daily basis, and then set up the instant collateral security registration in order to secure the buyer’s right to secure the buyer’s right, and did not have the intent to guarantee the buyer’s obligation to pay for the goods to the Defendant. Therefore, the instant collateral security registration should be revoked on the grounds that the cause for revocation is invalid or that there exists no obligation to pay for the goods.

B. (1) The determination of the right to collateral security is a mortgage established by setting only the maximum amount of the obligation to be secured and reserving the determination of the obligation in the future (Article 357(1) of the Civil Act). Since it is a security right established to secure a certain amount of unspecified claims arising from a continuous transaction relationship in the future, there must be a legal act establishing the secured claim of the right to collateral security separately from the act of establishing the right to collateral security, and it is a legal act establishing the secured claim of the right to collateral

참조조문

-민법 제357조 제1항

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