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(영문) 서울고등법원 2015.06.02 2014나44330
근저당권말소
Text

1. The plaintiff's primary and conjunctive claims that are changed alternatively in this court are all dismissed.

2...

Reasons

1. Basic facts

A. D On December 19, 201, it was designated as an intermediate wholesaler of the E-joint market established and operated by the Defendant on December 19, 201, and sold livestock products supplied by the Defendant to the F Co., Ltd. (hereinafter “F”) after the purchase by auction from December 26, 201.

B. Around November 12, 2012, F confirmed that the aggregate amount of the outstanding amount to FD at the time is KRW 172,448,040 (including interest and other expenses) between D and the Defendant at the time, and entered into a transaction agreement between D and the Defendant that, if F provides a new security, it would provide F with a new security, it would provide F with a 14-day credit in relation to the payment of the outstanding amount and the purchase price of livestock products to be generated in the future.

C. Around that time, the Plaintiff agreed with H, a actual operator of F, to provide the Plaintiff with the KRW 2,804 square meters (hereinafter “the instant real estate”) prior to Ilyang-gu, Yongsan-gu, Seoul (hereinafter “the instant real estate”) as a security for the supply of and demand for the said livestock products. On November 15, 2012, the Plaintiff entered into a mortgage agreement with the Defendant on the instant real estate (hereinafter “instant mortgage agreement”).

The document of the instant mortgage contract (A3 and B 3) drafted at the time indicated as “debtor: The Plaintiff, the mortgagee of the right to collateral security: the scope of the secured obligation: the comprehensive collateral security, the maximum debt amount: 459,000,000 won, and the future designation type: the period for settlement of mortgage settlement;” and accordingly, on November 16, 2012, the registration of establishment of a mortgage (hereinafter “registration of establishment of a mortgage of the instant case”) created as “the maximum debt amount of the instant real estate” 459,000,000 won, the mortgagee, the Defendant of the right to collateral security, and the debtor D.

E. On April 5, 2013, the Defendant terminated an intermediary wholesaler transaction agreement with D on the ground of unpaid settlement of credit payment. On May 31, 2013, the Defendant filed an application for voluntary auction on the claim amounting to KRW 437,188,634 (the claim amount against D at the time of the termination of the contract). On June 3, 2013, the Defendant received a decision to commence the auction with the Government District Court Yangyang Branch Branch I on June 3, 2013.

(f) thereafter;

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