Plaintiff

Defendant

December 9, 2011

Busan District Court Decision 2008Gadan35762 Decided October 8, 2009

Busan District Court Decision 2009Na22195 Decided June 11, 2010

Supreme Court Decision 2010Da54924 Decided May 13, 2011

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant confirmed that there is no secured obligation of the registration of the establishment of a neighboring mortgage (hereinafter "mortgage of this case") that was completed on September 7, 2001 by the Busan District Court Registry No. 14211, with respect to the shares of 3290/470 (hereinafter "the real estate of this case") among the shares of 4757m2 in Gangseo-dong, Gangseo-gu, Busan Metropolitan City (number omitted), Gangseo-gu, 4757m2.

1. Quotation of judgment of the first instance;

The reasoning for the court’s explanation on the instant case is as follows: (a) evidence additionally submitted at the trial, which is insufficient to recognize that the secured obligation of the instant right to collateral was nonexistent or repaid in whole; (b) the written evidence Nos. 119 through 138; and (c) Nonparty 1’s witness of the trial court (non-party to the judgment of the Supreme Court); and (d) other than adding the following judgment to the pertinent part, the reasoning for the judgment of the court of first instance is as stated in the main sentence of Article 420 of the Civil Procedure

2. The addition;

The plaintiff asserts that since there was only money transaction with the non-party 1, who is the defendant's trial money, and there was no money transaction between the defendant and the non-party 1, there is no collateral obligation of this case that the defendant as the creditor does not exist.

In case where a mortgage is created by providing real estate owned by an obligor as collateral for the purpose of securing a claim, in principle, the creditor and the debtor may not differ from the subject of the mortgage in light of the appendant legal principle of the security right, but in special circumstances where an agreement was made between the creditor, the debtor and the third party regarding the registration of the mortgage in the name of a third party, which is not the creditor, and the third party, and the third party may be deemed to have been actually reverted to the claim, or in light of transaction circumstances, the third party may be deemed to have been repaid the claim effective from the debtor, and the debtor may also be deemed to have an indivisible relationship between the creditor and the third party among the third parties, who are the creditor or the nominal owner of the mortgage.

On December 5, 2002, the Plaintiff prepared a certificate of loan No. 46 and No. 17 with the entire purport of the pleadings, namely, the following circumstances: (a) the Plaintiff and the Defendant prepared a certificate of loan with the obligee as the Defendant; (b) the claim for loan was the secured debt; (c) the Plaintiff deposited the interest with the Defendant’s passbook from October 2001 to February 2003; and (d) the Plaintiff prepared a certificate of loan with Nonparty 1, the Defendant’s mother money’s settlement of money transaction to the point of time; and (e) the obligation remaining at that time was KRW 14.5 million with the obligee; and (e) the Plaintiff’s claim for the cancellation of the registration of mortgage against the Defendant and the establishment of the mortgage against the Defendant was valid under the premise that all of the Plaintiff’s claims were valid under the premise that the mortgage rights were valid.

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Man-man (Presiding Judge) Jin-hee Park Chang-hee