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Reasons
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(영문) 의정부지방법원 2015.04.16 2013가단38558
근저당권말소등기말소
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1. The defendant shall pay 17,616,986 won from the plaintiff and 2.5% per month from October 18, 2008 to the date of full payment.

Reasons

1. Basic facts

A. On October 24, 2007, the Plaintiff borrowed KRW 90 million from the Defendant as interest rate of 2.5%, and concluded a mortgage contract with the Defendant on each land listed in the separate sheet owned by the Plaintiff (hereinafter “each land of this case”) in order to secure the above loan debt (hereinafter “the loan debt of this case”). On the 26th of the same month, the Plaintiff completed the registration of establishment of mortgage with the Defendant as to each land of this case as to the maximum debt amount of KRW 120 million, the debtor, and the mortgagee as the Defendant (hereinafter “registration of establishment of mortgage”).

B. On October 24, 2007, the Defendant paid KRW 87,750,000 after deducting KRW 2,250,000 as a monthly interest from the Defendant’s broker C. On the same day, C paid KRW 87,30,000 out of the above amount to the Plaintiff.

C. On January 29, 2008, the Plaintiff paid KRW 13 million to C and KRW 5.4 million to the Defendant on July 28, 2008, KRW 2250,000,000 to the Defendant on October 17, 2008, KRW 92 million.

[Ground of recognition] Facts without dispute, Gap evidence 1, 4 (including the number with each number), Gap evidence 3-2, Eul evidence 3 and 4, the purport of the whole pleadings

2. Summary of the plaintiff's assertion

A. The Plaintiff borrowed KRW 90 million from C and C borrowed KRW 90 million from the Defendant. In light of the above circumstances, it should be deemed that the Plaintiff paid KRW 18.4 million to C was appropriated for the repayment of the instant loan obligation.

B. The same does not apply even if they were.

Even if the Plaintiff and the Defendant agreed to pay the interest on the loan of this case to C, and the Defendant fully repaid the loan of this case in accordance with the agreement, so the Defendant is obligated to cancel the registration of establishment of a mortgage of this case.

3. Determination

A. The fact that the Defendant remitted 8,7750,000 won to D’s account designated by C on October 24, 2007, and C remitted 87,30,000 won to the Plaintiff on the same day is as seen earlier.

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