The right to claim cancellation of the registration of establishment of the right to collateral security when the secured claim of the right to collateral security has been fully extinguished, and the debtor has no intention to continue transactions with the right to collateral security

It is reasonable to interpret that if a claim secured by the right to collateral security is extinguished in full and the obligor does not intend to continue the transaction, the mortgagee may terminate the contract and seek the cancellation of the registration of creation even before the expiration of the period, there is a provision of the duration of the collateral security or the basic contract.

Article 357 of the Civil Act, Article 543 of the Civil Act

Cho Jong-ju, Inc.

Defendant

Seoul High Court Decision 65Na1653 delivered on December 1, 1965

The original judgment shall be reversed, and

The case is remanded to Seoul High Court.

The grounds of appeal by the plaintiff's agent are examined.

According to the judgment of the court below, the court below held that the mortgage is a mortgage with the contents of which the maximum amount of the debt to be secured is set and which is deferred by any time in the future agreed between the parties to the contract. The extinction or transfer of the debt until the expiration of the time period is determined shall not affect the mortgage. In this case, there is no clear dispute between the parties to the registration of the establishment of the mortgage. However, there is no dispute between the defendant and the original defendant, but it can be recognized that the term of existence of the mortgage is agreed by the date of the notification of the cancellation of the contract between the defendant and the original defendant.

However, if a claim secured by the right to collateral security is entirely extinguished and the obligor does not intend to continue transactions, such as borrowing a new amount from the obligee, it would be reasonable to interpret that the period of existence of the right to collateral security or a contract based on the right to collateral security has been fixed, and even before the expiration of the period, it would be reasonable to interpret that the person who created the right to collateral security may cancel the above-mentioned contract and seek the cancellation of the registration of the right to collateral security. Furthermore, even if the contract in the instant right to collateral security is agreed upon, it cannot be deemed that the period for settlement of the claim secured by the right to collateral security has been determined by the settlement of accounts for the claim secured by the right to collateral security, and thus, it cannot be said that such agreement has been concluded that the obligor has extinguished the entire secured claim and cannot be claimed for the cancellation of the registration of the right to collateral security. Therefore, even if the obligor did not have any error of law by misapprehending the legal principles as stated earlier,

Therefore, it is so decided as per Disposition by the assent of all participating judges under Article 406 (1) of the Civil Procedure Act.

[Judgment of the Supreme Court (Presiding Judge) Mag-Jak Park Mag-gu