Plaintiff (Law Firm New, Attorney Cho Sung-hoon et al., Counsel for plaintiff-appellant)

Han Bank Co., Ltd. (Law Firm Won, Attorneys Lee Han-hee, Counsel for the plaintiff-appellant)

November 15, 2011

Suwon District Court Decision 2010Da42392 Decided October 28, 2010

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

On March 24, 2010, the compulsory execution against the real estate stated in the attached Table 2, which was completed on August 11, 2005 by the Suwon District Court Seosung registry office (receiving number omitted) with respect to the real estate listed in the attached Table 1 list, shall be dismissed.

2. Purport of appeal

It is as set out in paragraphs 1 and 2 of this Decree.

1. Facts of recognition;

A. A. Around January 2004, a forest land of 15,285 square meters ( Address 1 omitted) was jointly owned by Nonparty 1,285 square meters (hereinafter “land before subdivision”). However, on August 3, 2005, the land before subdivision was developed as a factory site, and 3,071/285 shares were 15,285 shares in 3,285,285 shares in 3,411 shares in 3,411 shares in 3,285, 15,285 shares in 3,124 shares in 4,40 shares in 15,285, and 15,285 shares in 3,679 shares in 3,679 shares in 3,679 shares in 15,285.

B. However, in fact, the Plaintiff purchased each specific part of the land before subdivision from the developer, but the Plaintiff did not perform the subdivision of the land before subdivision and completed the registration of transfer of the entire share of the land before subdivision as described in the above paragraph (a) at the ratio of the area purchased for convenience, as stated in the above paragraph (a). The Plaintiff owned each specific part of the land before subdivision.

C. On August 11, 2005, the Plaintiff provided each loan from the Defendant as collateral for the repayment obligation of the land before subdivision. While the Defendant knew that the land before subdivision was divided into the ownership of the specific parts of the land before subdivision, the lower court decided to set up the right to collateral for the entire land before subdivision, the lower court, the lower court, the lower court, the lower court, the lower court, the lower court, and the Plaintiff’s share as Defendant: (a) on August 11, 2005, the lower court determined to set up the right to collateral for the entire land before subdivision, the lower court, the lower court, the lower court, the lower court, the lower court, and the lower court: (b) the obligor’s share as KRW 660,00,000; (c) the lower court, the lower court, the lower court, the lower court, the lower court, the lower court, the lower court, the lower court, the lower judgment, and the lower judgment.

D. Meanwhile, around November 2, 2005, Nonparty 4 sold 2,502/15,285 of his share of the land before subdivision to Nonparty 5. On December 6, 2005, Nonparty 4 completed the registration of ownership transfer in the name of Nonparty 5 with respect to the above 15,285/15/15 on December 6, 2005. In fact, Nonparty 4 sold part of the part of the land before subdivision, which was divided by Nonparty 4, to Nonparty 5.

E. Around June 13, 2006, part of the land before the partition was divided into 3,071 square meters (the share size is 3,071 square meters and the divided area is 2,975 square meters. Considering road portion, the area of the land before subdivision was reduced to 12,310 square meters (hereinafter “ Address 3”). The above land was owned solely on June 28, 2006. Nonparty 25 (the share size is 3,000 square meters) was divided into 2,975 square meters (the address is 3 omitted) and 2,975 square meters. Nonparty 2 was divided into 45 square meters; Nonparty 65 square meters prior to the partition of co-owned property; Nonparty 2 was divided into 65 square meters; Nonparty 2,258 (the share size was 2,285,2585,2585,2585,265,5825,585 (the share of the land before the partition was 6).

F. Although the above land was partitioned as above, each registration of creation of a neighboring mortgage with the Defendant as the mortgagee as stated in the above sub-paragraph (c) was transcribed on the land. Among them, the registration of creation of a neighboring mortgage with the Plaintiff, Nonparty 4, and the Defendant as the debtor on July 20, 2006 was revoked on the ground of partial renunciation of the right to collateral security on July 20, 2006. On the same day, the registration of establishment of a neighboring mortgage with the maximum debt amount of KRW 480,000,000, which was set out in the portion of the neighboring mortgage on the land ( Address 3) and the land prior to the division, was revoked on the ground of termination of the right to collateral security.

G. On December 30, 2005, Nonparty 5 made an investment in kind in the part of the land before subdivision to Trade Union and Chemical Co., Ltd. (hereinafter “Lochemical”). Accordingly, on July 27, 2006, the registration of transfer of ownership in the name of Trade Union and Chemical (3,107) was completed with respect to the shares of Nonparty 5 (3,285) among the lands before the partial area has decreased, as described in the above paragraph (e).

H. Around September 17, 2007, the subdivision registration was completed with respect to the land prior to the subdivision of which a certain area has been reduced as described in the foregoing paragraph (e) as of September 17, 2007, the land prior to subdivision was divided into ① 3,564m2,325m2 ( Address 4 omitted), ③ 2,325m2,45m2 ( Address 5 omitted), ④ 3,425m2 ( Address 2 omitted), ⑤ 51m2,51m2 (road 6 omitted) of the factory site (hereinafter the above land lot number alone), and the land size of Nonparty 4, 5m2, which was co-owners of the above land prior to subdivision, as described in the above paragraph (e) at the time of January 4, 2008, each of the above land size was 5m25m2, and each of the above land size was 14m2,008m27.

I. At the time when the Plaintiff independently acquired ownership of the said land, the said land was revoked on March 22, 2010 due to the sale of the said land by voluntary auction, and the registration of the establishment of a mortgage-based collective security right-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security-based collective security.

(j) Meanwhile, with the division of land before the division, the registration of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the entire land on January 19, 2009. The establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the foundation.

(k) On January 19, 2007, the provisional attachment order which was rendered by Nonparty 7 to Nonparty 35,000,000 on the portion of Nonparty 4, among the lands before a certain area has been reduced, as described in the above paragraph (e) above, on January 19, 207. ② on June 25, 2007, the head of Geumcheon District Tax Office completed the attachment by the head of Geumcheon District Tax Office. ③ On June 25, 2007, the partition of co-owned properties under the above paragraph (c) (2) after the partition of co-owned properties under the above paragraph (c) (2) was completed on January 13, 2009, on which the object of the right to collateral security was changed to the whole land.

[Ground of recognition] Facts without dispute, Gap 1, 2, 4-9, 11, and 13 (including provisional numbers), the purport of the whole pleadings

2. Determination as to the cause of action

A. The plaintiff's assertion

1) On August 11, 2005, at the time three previous mines were leased from the Defendant, the previous mines offered as security a specific part of the land before subdivision. While the Defendant also owned a specific portion of the entire land before subdivision formally, the Defendant was aware that three previous mines owned a specific portion of the land before subdivision, and was provided as security. Thus, the collateral of loans to the Defendant of three previous mines was limited to the specific part of the land before subdivision, i.e., the detailed part of the land before subdivision, where three previous mines were owned separately from three previous mines. Since the collateral of loans to the Defendant of three previous mines was limited to the land before subdivision, i.e., the land at which five thousand and forty one-one shares were owned formally among the land before subdivision, and since three thousand and one-one shares of the land before subdivision was established solely by the agreement between the Plaintiff and the sectional owners of each land before subdivision. In addition, the partition of co-owned property of the Defendant’s co-owned property was not effective as to each land before subdivision.

2) The fact that the Defendant owned a specific part of the previous land prior to subdivision and provided it as security is well known to the effect that the Defendant applied for auction to the shares of which the previous land of the above ( Address 1) was formally owned constitutes an abuse of rights.

3) Therefore, the instant voluntary auction on the real estate stated in the Attachment No. 2, which was established on the real estate listed in the Attachment No. 1 List, on August 11, 2005, shall be denied.

B. Determination

1) First, we examine the argument on A. 1.

In general, security rights, such as the right to collateral security established on the share of one co-owner, are not naturally concentrated on the part divided in the future of the person who created the right to collateral security, even after the co-owned share became a co-owned share, unless otherwise agreed by the special group (see Supreme Court Decision 88Meu24868, Aug. 8, 1989, etc.). In light of the fact that the right to collateral security, such as the right to collateral security established on the share of one co-owner, remains on the whole co-owned share according to the previous share ratio, and is not naturally concentrated on the part divided in the future of the person who created the right to collateral security (see Supreme Court Decision 8Da24868, Aug. 8, 1989, etc.), even if the right to collateral security established on the share of the land before partition is externally recognized as a co-owned relationship, and registration procedures are not provided under the Registration of Real Estate Act.

In addition, the testimony of the witness of the trial party is insufficient to recognize that the defendant agreed to divide the right to collateral on August 11, 2005 with each co-owner of the land before partition, which was set up with the plaintiff and each co-owner of the land before partition, without any premise, at the time of establishing the right to collateral on August 11, 2005, in a case where the land before partition is divided with each co-owned property portion of the land before partition. There is no other evidence to recognize otherwise. However, as seen above, it is impossible for the defendant to establish the right to collateral on each co-owned property at the time of each co-owned property division to secure the specific part of the land before partition. Thus, it is not possible for the defendant to establish the right to collateral on each co-owned property after establishing the right to collateral security on each co-owned property after establishing the right to collateral security on all the land before partition. Thus, it is not possible to establish the right to collateral security on each co-owned property after establishing the right to collateral security on all the land before partition.

2) Next, in order to examine the argument above A. 2, if the exercise of the right can be seen as an abuse of the right, the purpose of the exercise of the right is to inflict pain on the other party and to inflict losses on the other party, and it should not be a case where there is no benefit from the other party who exercises the right, and the exercise of the right should be objectively deemed as a violation of social order (see Supreme Court Decision 2002Da22083, 22090, Sept. 4, 2002). In light of all the above circumstances, the defendant's loan to the plaintiff, etc. around August 11, 2005, it is insufficient to recognize that the defendant's application for voluntary auction procedure of this case constitutes an abuse of right, and there is no other evidence to prove otherwise.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions, and thus it is revoked by the defendant's appeal and dismissed the plaintiff's claim. It is so decided as per Disposition.

[Attachment]

Judges Kim Jong-sik (Presiding Judge)