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1. The Defendant completed on May 24, 2012 with respect to the real estate stated in the attached list as to the Plaintiff.
Reasons
1. Basic facts
A. The Plaintiff is the owner of the real estate listed in the separate sheet (hereinafter “instant real estate”). C is the Plaintiff’s spouse, and D is the Defendant’s spouse.
B. As to the instant real estate, on May 24, 2012, the registration of the establishment of a mortgage (hereinafter “registration of the establishment of a mortgage of this case”) consisting of the Defendant with the right holder, the maximum debt amount of KRW 50 million, was completed.
[Ground of recognition] Facts without dispute, entry of evidence No. 1, purport of the whole pleadings
2. The plaintiff's assertion
A. Since the Plaintiff concluded a monetary loan agreement with the Defendant and agreed to provide the instant real estate as security, the establishment registration of the instant collateral should be cancelled due to the absence of the secured debt.
B. In addition, the Plaintiff asserts that C, his spouse, has not granted the right of representation concerning the establishment of the instant mortgage, and that C, without the Plaintiff’s consent, has completed the establishment registration of the instant mortgage by using the Plaintiff’s identification card and seal imprint. Therefore, this should be cancelled as the registration of invalidity of the cause.
3. Determination
A. The right to collateral security (1) is a mortgage established by settling only the maximum amount of the debt to be secured, and reserving the determination of the debt in the future (Article 357(1) of the Civil Act). Since it is a security right established to secure a certain limit from a continuous settlement of accounts in the future, there must be a legal act establishing the right to collateral security, separate from the act of collateral security. The burden of proving whether there was a legal act establishing the right to collateral security at the time of the establishment of the right to collateral security (see, e.g., Supreme Court Decision 2009Da72070, Dec. 24, 2009). In addition, the right to collateral security is for the purpose of collateral security.