Supreme Court-2015-C-225011 (No. 12, 2017)

In the event of dispute that there was no legal act establishing a secured claim, the other party must prove that there was an act of borrowing.

In the absence of a legal act to establish the secured claim of the right to collateral security, the burden of proving the existence of the legal act is on the part of claiming the existence.

Article 357 of the Civil Act

2017Na13890 De-mortgage

Korea

OO

Supreme Court-2015-C-13890 (No. 12, 2017)

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. 피고는 AAA에게 OO시 OO읍 OO리 OO 전 OOO㎡에 관하여 OO지방법원 OO지원 OO등기소 20XX. X. X.접수 제XXXX호로 마친 근저당권설정등기의 말소등기절차를 이행하라.

3. All costs of the lawsuit shall be borne by the defendant.

1. Scope of the judgment of this court;

The Plaintiff, on behalf of AA, sought implementation of the procedure for registration of cancellation of the registration of the establishment of a neighboring mortgage as stated in the above claim, and filed the instant lawsuit against the Defendant, seeking implementation of the procedure for registration of cancellation of the establishment of a neighboring mortgage as stated in paragraph (2) of the above claim. The court of first instance accepted the Plaintiff’s claim against BB, but dismissed the Defendant’s claim against the Defendant. Since only the Plaintiff appealed on the part against the Defendant, the scope of the judgment of this court is limited to the part against the Defendant in the judgment of the first instance.

2. Basic facts

The following facts may be acknowledged in the statement No. 2 of the evidence No. 2 by integrating the whole purport of the pleadings.

가. AAA은 OO시 OO읍 OO리 OO 전 OOO㎡(이하 '이 사건 토지'라고 한다)에 관하여 2001. 12. 7.자 매매를 원인으로 하여 OO지방법원 OO지원 OO등기소 20XX. X. X.접수 제XXXX호로 소유권이전등기를 마쳤다.

B. On March 27, 2007, AA completed the registration of the establishment of a mortgage (hereinafter referred to as the “registration of the instant mortgage”) on the land of this case by the OO branch registry office of OO branch on April 27, 2007, No. 21482, which was received on April 27, 2007.

3. The assertion and judgment

A. The plaintiff's assertion

The instant mortgage contract constitutes a false conspiracy and thus null and void, and there was no legal act establishing the secured claim at the time of the establishment of the instant mortgage, so the Defendant is obligated to implement the registration procedure for cancellation of the instant mortgage registration to AA. The Plaintiff, as a national tax creditor of the insolvent AA, seeks implementation of the procedure for cancellation registration to the Defendant by subrogation of AAA as a national tax creditor of the insolvent AA.

B. Determination

1) Whether a conspiracy constitutes false representation

Where the Plaintiff claims that his bonds are invalid as a false declaration of conspiracy, the Plaintiff is liable to prove the facts constituting the cause of interference, and to establish a false declaration of conspiracy, the intention and indication of the intention of the declaration of intention are inconsistent and an agreement is required between the other party as to the inconsistency (see, e.g., Supreme Court Decision 2012Da266, Apr. 13, 2012).

Comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 2, 7, 11, 13 and Eul evidence Nos. 1, 2, and 3, Gap borrowed a total of KRW 00 million from the defendant and its husband on May 20, 2002 and the amount of KRW 100 million on May 25, 2005 and completed the registration of the right to collateral security in order to secure the loan obligation. The mortgage registration of this case claimed by the defendant must be completed on April 27, 2007 after the reasonable period from the above borrowing date, which is less than the above borrowing date, was completed at the highest amount of KRW 00,000,000,000,0000,000 won, which is less than the above borrowing amount, and there is no evidence to acknowledge that the loan was already received by the financial institution around May 20, 2002 as the joint collateral security agreement between the defendant and the other party.

2) Whether there exists a legal act establishing the secured claim

A mortgage is a mortgage created by setting only the maximum amount of the debt to be secured and reserving the determination of the debt in the future, and when it is confirmed that there is no secured debt, the registration of establishment of the mortgage must be cancelled. Meanwhile, in cases where there is no legal act to establish the secured debt at the time of establishment of the right to collateral, the burden of proving whether there was a legal act to establish the secured debt at the time of establishment of the right to collateral exists. There is no legal act to establish the secured debt at the time of

The Defendant asserts the existence of the act of borrowing money from the Defendant, a mortgagee, bears the burden of proving whether there was a legal act in the instant case, namely, whether AAA borrowed money from the Defendant, a mortgagee. However, since the Defendant did not prove this, it can be deemed that the secured claim of the instant right to collateral security was non-existent.

3) Appropriateness of the subrogation claim

On February 28, 2013, AA did not pay the national taxes of OOO members, including additional dues and expenses for disposition on default as of February 28, 2013; the final payment period of the national taxes is February 28, 2013; the active property of AA as of June 12, 2013, the filing date of the instant lawsuit, is identified as OOO, small property as of June 12, 2013; and the fact that AA had not claimed against the defendant for the implementation of the procedure for registration of cancellation of the registration of the instant right to collateral security against the defendant may be recognized by taking into account the aforementioned or all the arguments together.

In addition to the above facts, insofar as it is deemed that the secured debt of the instant case is not nonexistent, the Defendant is obligated to implement the procedure for cancellation registration of the instant mortgage registration to AA, and there is no evidence to deem that AA’s self-sufficiency was improved at the time of the conclusion of the argument in the instant case, unlike the foregoing on June 12, 2013, it is reasonable to deem that the Plaintiff may claim the Defendant to implement the procedure for cancellation registration of the instant mortgage registration by subrogation as a national tax creditor of AA as a national tax creditor of AA.

4. Conclusion

The plaintiff's claim against the defendant shall be accepted on the ground of its reason. Since the part against the defendant in the judgment of the court of first instance as to the defendant is unfair with different conclusions, the part against the defendant in the judgment of the court of first instance which accepted the plaintiff's appeal and revoked the part against the defendant in the judgment of the court of first instance, and ordered the defendant to implement the procedure