(영문) 광주지방법원 2016.06.10 2015나57221

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(영문) 광주지방법원 2016.06.10 2015나57221

채권자대위권에 기한 근저당권말소 등

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1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

1...

Reasons

1. Facts of recognition;

A. On April 2008, the Plaintiff filed a lawsuit seeking payment of KRW 15 million and damages for delay from November 1, 1997 with the Gwangju District Court Decision 2008Gau102096, Gwangju District Court Decision 2008, the Plaintiff filed a lawsuit seeking payment of KRW 15 million and damages for delay. On October 30, 2008, the said court rendered a judgment ordering C to pay the said amount, and the said judgment became final and conclusive on November 29, 2008.

B. Since May 1981, C owned each real estate listed in the separate sheet (hereinafter “instant real estate”) and completed the registration of creation of a neighboring mortgage (hereinafter “registration of creation of a neighboring mortgage”) to the Defendant on February 20, 1997 on the ground of a contract to establish a collateral (hereinafter “registration of creation of a neighboring mortgage”) with the maximum debt amount of KRW 60 million.

C. C is currently insolvent, and on April 19, 1971, the marriage with the co-defendant B of the first instance court on April 19, 1971, but the agreement was married on April 27, 1998, and the defendant is the birth of B.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence No. 1, the purport of the whole pleadings

2. The parties' assertion

A. Since the agreement to establish a mortgage between C and the defendant, which caused the establishment registration of a mortgage in the nearest area of the Plaintiff’s assertion, is null and void as it was conducted without the secured debt and constitutes a false declaration of agreement, the Plaintiff seeks to cancel the registration of a mortgage in subrogation of

B. The Defendant alleged that the Defendant lent approximately KRW 40 million to C several times, and thus, completed the registration of establishment of mortgage of this case, the secured claim exists, and C continues to pay part of the obligation to the Defendant.

3. The judgment is a mortgage established by setting only the maximum amount of the debt to be secured and reserving the determination of the debt in the future. Since multiple unspecified claims arising from a continuous transaction are established for the purpose of securing a certain limit in the future settlement term, it is separate from the act of establishing the right to collateral security.

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