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The judgment below
The part against the defendant is reversed, and that part of the case is remanded to the District Court.
Reasons
The grounds of appeal are examined.
1. Since the registration of creation of a neighboring mortgage is presumed to have been duly completed not by the act of directly applying for registration of cancellation, but by the third party, even if the third party was involved in the act of the application, it is presumed that the previous right to file for registration of cancellation of the right to collateral security had no authority to act on behalf of the third party, i.e., the right to file
The third party bears the burden of proving the invalidity of registration procedures, such as forging the registration documents of the mortgagee, etc.
(See Supreme Court Decision 93Da18914 Decided October 12, 1993, Supreme Court Decision 2015Da39180 Decided November 12, 2015, etc.). 2. The lower court acknowledged the fact that the Defendant entered into a mortgage agreement between the Plaintiff on May 31, 2011 with respect to the instant real estate owned by the Defendant, with the maximum debt amount of KRW 200 million, E, and the Plaintiff as the mortgagee, and completed the establishment registration of a mortgage on June 11, 201. The fact that the cancellation registration of the establishment registration of a neighboring real estate was completed on August 17, 201 at the request of F, claiming that the Plaintiff has the authority to act on behalf of the Plaintiff.
Furthermore, in light of the following: (a) F did not contact or confirm the Plaintiff when filing an application for cancellation registration of the registration of the establishment of the instant neighboring mortgage; (b) there is no evidence to prove that E repaid the Plaintiff’s debt; (c) no particular circumstance exists to grant the right to represent the cancellation registration of the establishment of the instant neighboring mortgage to E or F despite the Plaintiff’s non-payment of debt; and (iv) F was illegally cancelled the registration of the establishment of the instant neighboring mortgage in several times and was serving a sentence for the crime of forging private documents, etc., the evidence alone submitted by the Defendant.