In a case where it is confirmed that there is no secured claim of the right to collateral security, whether the registration of the right to collateral security should be cancelled (affirmative); and in a case where there is no legal act that establishes the secured claim of the right to collateral security at the time of the establishment of the right to collateral security, the person who bears the burden of proving whether such legal act was

Article 357(1) of the Civil Act; Article 288 of the Civil Procedure Act

Korea

Defendant

Daejeon High Court Decision 2014Na10142 decided June 24, 2015

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

A. The registration of establishment of the right to collateral security should be cancelled when there is no established mortgage claim (Article 357(1) of the Civil Act), which is a mortgage established by settling only the maximum amount of the debt to be secured, and reserving the determination of the debt in the future (Article 357(1) of the Civil Act), and when there is no established mortgage claim. Meanwhile, the burden of proof as to whether there was a legal act in the event that there is no legal act to establish the secured claim at the time

B. According to the reasoning of the judgment below, the court below rejected the plaintiff's claim of this case against the defendant on behalf of the non-party as a claim right holder against the non-party, seeking cancellation of the registration of the establishment of the right to collateral security in this case under the name of the defendant, which was completed on the land of this case owned by the non-party on behalf of the non-party, on the ground that circumstances acknowledged by the evidence of the judgment alone are insufficient to readily conclude that the above right

C. However, according to the records, the Plaintiff, as the ground for seeking the cancellation of the registration of the establishment of the instant right to collateral security, asserts that “no legal act has been done with respect to the establishment of the secured claim,” along with the assertion on false agreement (see, e.g., the preparatory document, etc. submitted by the Plaintiff on November 6, 2013). In the event that the Plaintiff contests that there was no legal act establishing the secured claim at the time of the registration of the establishment of the instant right to collateral security, the burden of proving whether the Nonparty borrowed money from the Defendant, who is the mortgagee, was the Defendant claiming the existence of the act of borrowing, and if there is insufficient proof by the Defendant, it can be deemed that the secured claim of the instant right was confirmed as

D. Nevertheless, the court below rejected the Plaintiff’s claim on the ground that there is insufficient evidence to acknowledge that the mortgage contract of this case was a false conspiracy without examining the validity of the Plaintiff’s assertion that there is no legal act establishing the secured claim. The court below erred by omitting judgment on the parties’ assertion and thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Poe-young (Presiding Justice)