(영문) 서울중앙지방법원 2019.02.12 2017가단101568

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(영문) 서울중앙지방법원 2019.02.12 2017가단101568

저당권설정등기 무효확인의 소

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1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. A. Defendant D has completed the registration of ownership transfer and the registration of establishment of a neighboring mortgage (1) on August 16, 2002, each of the real estates listed in the separate sheet (hereinafter “each of the instant real estates”).

(2) On April 26, 2010, Defendant B completed the registration of ownership transfer with respect to each of the instant real estate on April 26, 2010, the registration of ownership transfer was completed, and the debtor completed the registration of creation of a collateral security (hereinafter “mortgage 1”).

3) On May 23, 2014, Company E completed the registration of ownership transfer with respect to each of the instant real estate. 4) The instant right to collateral security was cancelled on May 28, 2014 due to termination on May 27, 2014.

5) On July 2, 2014, the Plaintiff registered the creation of a mortgage over each of the instant real property with the maximum debt amount of KRW 37,500,000,000, and the debtor as E and the mortgagee as the Plaintiff (hereinafter “instant 2-mortgage”).

(B) A. B. A. (1) On June 18, 2015, the Plaintiff’s application for voluntary auction of each of the instant real estate was commenced on June 18, 2015, and a distribution schedule was prepared to distribute KRW 33,216,528 to the Plaintiff, who is the second mortgagee of the instant real estate, in the said auction procedure.

2) Defendant B filed an objection to the distribution against the Plaintiff, and as to October 10, 2017, Defendant B filed a lawsuit of demurrer to the distribution with the High Government District Court 2017Kadan16320 (hereinafter “instant lawsuit of demurrer to the distribution”).

A. [The facts that there is no dispute over the basis of recognition, Gap evidence Nos. 3, 4, Gap evidence No. 5-1, 2, and 3, the purport of the whole pleadings, and the purport of the whole pleadings.

2. The Plaintiff’s assertion C set up the instant 1-mortgage on each real estate of this case as the collateral by lending KRW 50,000,000 to Defendant D. The instant 1-mortgage is null and void because it is deemed that the third party, not the creditor, is the mortgagee.

Nevertheless, Defendant B has objection.

유사 판례

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-의정부지방법원 2017.12.15 2016나7990

-인천지방법원 2016.03.22 2014가단255199 (1)

-수원지방법원 2016.08.10 2015가단56884