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The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.
Reasons
The grounds of appeal are examined.
1. As to the grounds of appeal Nos. 1 and 2
A. The right to collateral security is established with only the maximum amount of the obligation to be secured and the determination of the obligation is reserved in the future (Article 357(1) of the Civil Act), and the registration of establishment of the right to collateral security must be cancelled when it is confirmed that there is no secured claim.
On the other hand, if there is no legal act that establishes the secured claim of the right to collateral at the time of establishment of the right to collateral security, the burden of proof as to whether there is such a legal act is asserted.
B. According to the reasoning of the judgment below, the court below rejected the Plaintiff’s claim on the ground that the Plaintiff’s claim in this case against the Defendant, who had completed the registration of the establishment of the right to collateral security in the name of the Defendant, in subrogation of C, which was completed on the instant land owned by C, was identified only as a false declaration of conspiracy regarding the right to collateral security, and the circumstances acknowledged by the evidence of the judgment alone are insufficient to readily conclude that the above right to collateral security agreement
C. However, according to the records, the Plaintiff asserted that “no legal act does have to establish the secured debt” is the ground for seeking the cancellation of the registration of the instant collateral security establishment, along with the assertion of the false declaration of conspiracy.
(See, in the event that the Plaintiff asserts that there was no legal act establishing the secured debt at the time of the registration of the creation of the instant mortgage, the burden of proving whether C borrowed money from the Defendant, a mortgagee, is the Defendant claiming the existence of the act of borrowing, and if there is insufficient proof by the Defendant, the secured debt of the instant mortgage does not exist.