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(영문) 서울고등법원 2011.10.20 2010나111256
근저당권말소
Text

1. The judgment of the court of first instance shall be modified in accordance with the guidance of lawsuit and the modification of the purport of the claim in the trial as follows:

Reasons

Ⅰ In full view of the following facts, comprehensively taking account of Gap evidence Nos. 1, 3, 4, Eul evidence Nos. 1, 4, and 10, G witnesses of the first instance trial, and the purport of the entire pleadings by the court of first instance.

[1] The plaintiff A of the first instance court and the defendant, who is his large father, agreed to jointly purchase the real estate indicated in the attached Form (hereinafter "the instant house") with a burden of 1/2 of the cost around April 1988. At the time, the defendant decided to complete the registration of ownership transfer for the instant house under A's sole name due to the relation that he owned the housing No. 301 on the Yongsan-gu Seoul Metropolitan Government D ground.

Accordingly, A and the Defendant shared 1/2 of the cost of April 18, 1988, purchased the instant house from E in the name of KRW 14,000,000 from E. On June 13, 198, the Seoul Western District Court received the registration of transfer of ownership under A’s sole name as the receipt of the registration office for the instant house on June 13, 198.

[2] A and the Defendant, around February 194, can externally guarantee the Defendant’s 1/2 share in the instant housing, and the Defendant decided to complete the registration of creation of a mortgage covering KRW 15,00,000, the market price of the instant housing, as of the instant housing, with the maximum claim amount, as the maximum claim amount.

Accordingly, as to the instant house on February 15, 1994, A made the registration of creation of a mortgage on the instant house under the name of the Defendant, under Article 7023 of the Hague Registry No. 7023, the maximum debt amount of KRW 15,00,000, and the debtor A’s neighboring mortgage registration (hereinafter “the registration of creation of a mortgage on the instant house”).

However, around July 31, 2008, A sold the instant house to F in KRW 160,000,000, and on September 17, 2008, A completed the registration of transfer of ownership in F’s name under the name of Pyeongtaek Registry No. 7117.

[3] On May 22, 201, after the judgment of the first instance court, A died on May 2, 201, which was rendered by the first instance court, the Defendant, the spouse of the Plaintiff H and his/her children, and the Defendant and the Plaintiff, G, Plaintiff N, Plaintiff N, PlaintiffO, and Plaintiff P were succeeded.

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