(영문) 대구지방법원 2018.01.11 2017나307007

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(영문) 대구지방법원 2018.01.11 2017나307007

근저당권말소

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1. Revocation of a judgment of the first instance;

The defendant shall have jurisdiction over each real estate listed in the separate sheet to the plaintiff.

Reasons

1. Basic facts

A. Each real estate listed in the separate sheet (hereinafter “instant real estate”) was originally owned by C, the Plaintiff’s fraudulent act, and the ownership transfer registration was made in the name of the Plaintiff on August 7, 2001 on the ground of voluntary auction award.

B. On January 22, 2014, a certificate of loan was drawn up with the creditor as the defendant, the debtor as the plaintiff, and the loan amount of KRW 300 million.

(hereinafter “The instant loan”). In order to secure the instant loan on the same day, the registration of creation of the right to collateral security (hereinafter “registration of creation of the instant right to collateral security”) was completed with respect to the instant real estate by the Daegu District Court’s registration No. 15840, which consists of KRW 300 million for the Defendant, the debtor, and the maximum debt amount.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, the purport of the whole pleadings

2. Considering the following circumstances that can be acknowledged by comprehensively taking account of each of the above evidence, evidence as to the cause of the claim, evidence Nos. 3, 6, 7, 10, and 13, testimony of witness E of the first instance trial, the result of the examination of the defendant himself/herself at the trial of the party, and the overall purport of the arguments, the actual creditor of the instant loan is the defendant’s punishment D, the actual debtor is C, which is the plaintiff’s fraudulent act, and C is deemed to have fully repaid the instant loan by paying KRW 30 million to D on November 27, 2014.

Therefore, the Defendant is obligated to implement the registration procedure for cancellation of the registration of establishment of the instant mortgage.

① The Defendant asserts that he lent the instant loan to the Plaintiff via D.

However, according to the statement in Gap evidence No. 13 and the defendant's personal examination, the defendant did not know about the time when the repayment period of the loan in this case was due and about the interest rate was due, and the source of the loan in this case was not presented at all.

This is very exceptional to the creditor's behavior against KRW 300 million.

(2) The defendant shall be against C on November 27, 2014.

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