[Judgment of the court below]

Korea Credit Guarantee Fund (Law Firm Geum, Attorney Lee Han-pon, Counsel for the plaintiff-appellant)

April 2, 2020

Changwon District Court Decision 2018Kadan26146 decided March 5, 2019

1. Revocation of the first instance judgment.

2. It is confirmed that there does not exist no KRW 90,00,000 of the Plaintiff’s secured debt against Nonparty 1 based on the registration of the establishment of a neighboring mortgage completed on January 7, 2016 by the Changwon District Court macroscop registry office, which was received on January 7, 2016.

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

The same shall apply to the order.

1. Facts of recognition;

The reasoning for this part of this court is as follows, except for the case where "Nonindicted 7 and the plaintiff" in Part 3 of Part 14 of the judgment of the court of first instance is used as "the plaintiff", and therefore, it is identical to the corresponding part of the judgment of the court of first instance. Therefore, it is acceptable to accept it as it is in accordance with

2. The parties' assertion

A. The plaintiff

The plaintiff did not agree to pay money to the non-party 1, the non-party 2, and the non-party 3 (hereinafter the above three persons are referred to as "non-party 1, etc.") who are his children. The right to collateral security in this case was established to guarantee the prohibition of disposal of each real estate in this case and the implementation of the promise to support the non-party 5. Even if the plaintiff was liable to pay money to the non-party 5, the claim against the non-party 5 against the non-party 1, etc. can not be deemed to substantially belong to the non-party 1, etc. by agreement between the plaintiff and the non-party 1, etc.

B. Defendant

On December 28, 2015, the Plaintiff agreed to pay KRW 269 million to Nonparty 5. On December 29, 2015, the Plaintiff, Nonparty 5, and Nonparty 1, etc. agreed to transfer the claim for the above contract amount to Nonparty 1, etc., his/her child, to Nonparty 5, etc. on December 29, 2015. The instant right to collateral security is to secure the claim for the above contract amount, which actually belonged to Nonparty 1, etc. according to the above three-party agreement. Therefore, the Plaintiff’s assertion is without merit.

3. Determination

In a lawsuit seeking confirmation of existence of a pecuniary obligation, if a plaintiff, who is a debtor, claims first and denies the facts constituting the cause of the obligation, the defendant, the creditor, is liable to assert and prove the facts constituting the elements of the legal relationship (see, e.g., Supreme Court Decision 97Da45259, Mar. 13, 1998). On the other hand, in a case where the contents of a certain contract are prepared in writing as a disposal document between the parties, it shall not be bound to the phrase used in writing, but it shall be reasonably interpreted that the objective meaning which the parties attached to the act of indicating in writing should be reasonably interpreted regardless of the party's internal intent. In such a case, if the objective meaning of the text is clear, the existence and content of the expression of intent shall be recognized as stated in the text, barring any special circumstances (see, e.g., Supreme Court Decision 2012Da447

According to the evidence of evidence Nos. 10 and 11 as to the instant case, it is insufficient to recognize that the Plaintiff agreed to pay KRW 269 million to Nonparty 5. However, in light of the following circumstances, the above evidence and the statement of evidence Nos. 1 through 9, and 12 through 16, the Defendant’s whole purport of pleading was added. The evidence alone submitted by the Defendant alone is insufficient to recognize that Nonparty 1 et al. actually belonged to Nonparty 1 et al. as the secured debt of the instant right to collateral security. Accordingly, it is reasonable to deem that the Plaintiff did not bear the obligation of KRW 90 million against Nonparty 1 as the secured debt of the instant right to collateral security. As long as the Defendant’s assertion is asserted as the collection creditor of Nonparty 1, the benefit of seeking confirmation of the absence of the above secured right is recognized.

① According to the language and text of each agreement dated December 13, 2015 and December 28, 2015 (hereinafter referred to as “each of the instant agreements”), the Plaintiff is merely liable to pay the money to Nonparty 5, and there is no stipulation that the Plaintiff is liable to pay the money to Nonparty 1, etc. under each of the instant agreements.

② Even if Nonparty 1, etc. actually participated in the preparation of each of the instant agreements, and indicated “undertake, etc.,” at the bottom of the agreement dated December 28, 2015, it appears that Nonparty 1, etc. was involved in the contract for the deceased who delivered each of the instant agreements to Nonparty 5 or for the third party who is named Nonparty 5 as the beneficiary, and Nonparty 1, etc., who is in the position of the deceased or summary, as the creditor, did not have the right to seek direct performance of obligations to the Plaintiff.

③ In order to deem that Nonparty 1 et al. received the claim for the agreed amount against Nonparty 5’s Plaintiff as alleged by the Defendant, it should be premised on the agreement on the transfer of claims between Nonparty 5 and Nonparty 1, etc., but there is no evidence to deem that Nonparty 5 agreed on the transfer of claims as above.

④ In full view of the fact that Nonparty 5 was the Plaintiff’s assistance, the Plaintiff acquired a large amount of property value by inheritance of the real estate donated by Nonparty 5 before Nonparty 4 died; the Plaintiff attempted to sell the real estate inherited as above; Nonparty 5 and Nonparty 6, his spouse, who were living on the basis of the above real estate from Nonparty 1, etc.; and the Plaintiff prepared each of the instant agreements; and the Plaintiff prepared a letter of intent (Evidence 12) to faithfully support Nonparty 5 and Nonparty 6 on December 28, 2015, each of the instant agreements appears to have been prepared to the effect that the Plaintiff faithfully performed the duty to support Nonparty 5 and Nonparty 6 on the same day. However, the transfer of claims before Nonparty 5’s birth to Nonparty 1, etc. does not coincide with the purport of the instant agreement.

⑤ In light of the fact that the maximum debt amount of the instant right to collateral security was KRW 270 million, which the Plaintiff agreed to pay to Nonparty 5 through each of the instant agreements, there is almost little difference with KRW 269 million, which the Plaintiff agreed to pay to Nonparty 5; immediately following the written agreement signed on December 28, 2015, the written agreement signed on December 28, 2015, and the Plaintiff paid KRW 119 million until June 30, 2016, the written agreement signed on December 28, 2015, etc., it can be deemed that the instant right to collateral security was established to guarantee the duty to pay the agreed amount to be paid to Nonparty 5; and it is difficult to deem that the instant agreement was established to guarantee the inheritance claim acquired by Nonparty 1, etc. if Nonparty 5 dies.

4. Conclusion

Therefore, the claim of this case shall be accepted with due reasons, and the judgment of the court of first instance which has different conclusions is unfair, so it shall be cancelled and it shall be confirmed that the plaintiff's debt of 90 million won against the non-party 1 as the collateral obligation of this case does not exist as the collateral obligation of this case. It is so decided as per Disposition.

[Attachment]

Judges Lee Lee-soo (Presiding Judge) (Presiding Judge)