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(영문) 대구지방법원 2015.11.27 2015나303575
근저당권말소
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1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

Purport of claim and appeal

1. Purport of the claim.

Reasons

1. Basic facts

A. On April 10, 2007, Gyeongbuk Mutual Savings Bank filed a loan claim against B with the Daegu District Court Branch Branch of 2007Kadan932, and sentenced that “B shall pay to the Plaintiff 45 million won, 14.8% per annum from September 10, 2004 to October 9, 2004, and 21% per annum from the next day to the day of full payment.” The above judgment was finalized on May 26, 2007.

The Plaintiff succeeded to the claim of the judgment amount of the Gyeongbuk Mutual Savings Bank.

B. On November 4, 2004, B completed on November 2, 2004, the registration of creation of a neighboring mortgage with the obligor B (hereinafter “registration of creation of a neighboring mortgage of this case”) on the grounds of a contract to establish a contract with the Defendant on November 2, 2004.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2 (including branch numbers, hereinafter the same shall apply), witness F's testimony, the purport of the whole pleadings

2. The registration of the establishment of a mortgage of the Plaintiff’s assertion in the instant case was completed by a false conspiracy despite the absence of the secured debt, and thus, the cause is null and void. Even if the secured debt is not so, since the prescription period has expired, the registration of the establishment of a mortgage should be cancelled.

3. Determination

A. It is not sufficient to recognize that the registration of creation of a mortgage of this case was completed by a false conspiracy, only with the entries of the evidence Nos. 1 through 3, the Korea Federation of Banks, the Minister of Land, Infrastructure and Transport, and each fact inquiry result with respect to the Minister of Land, Infrastructure and Transport

Rather, according to the purport of Gap evidence Nos. 1 through 3, testimony of witness F and the whole pleadings, the defendant loaned business funds to Eul from April 26, 200 to September 20, 2001, including the transfer of a total of KRW 21650,000 to B from September 20, 2001. The defendant and Eul thereafter leased business funds to B from time to time. The above loans amount to KRW 30,000,000,000, which are part of the above loans on October 24, 2004.

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