(영문) 의정부지방법원 고양지원 2017.03.15 2016가단7817

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(영문) 의정부지방법원 고양지원 2017.03.15 2016가단7817

손해배상

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1. The plaintiff's claim is dismissed.

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

Reasons

1. The Plaintiff’s assertion ① First, the Defendant entered into the instant mortgage contract with the Defendant due to the act of fraud, and the Defendant was aware of the fact that there was a large amount of debt B at the time of entering into the instant mortgage contract, and the Defendant was established to secure the Defendant’s debt incurred prior to the establishment of the instant real estate transaction. In light of the fact that the Defendant knew or could have known B’s fraudulent act, the Defendant should be deemed to have entered into the instant mortgage contract with the Plaintiff. Therefore, the Defendant asserts that the instant mortgage contract was cancelled in accordance with Article 110(2) of the Civil Act.

② In addition, the Plaintiff asserts that even if the instant mortgage contract was effective, the establishment registration of the instant mortgage ought to be cancelled since there was no secured obligation of the instant mortgage.

2. Determination

A. (1) The evidence presented by the Plaintiff alone is insufficient to acknowledge that the Defendant knew or could have known the fraud of B, and there is no other evidence to support the allegation.

Rather, it is difficult to view that the defendant knew or could have known the fraud of B, according to the whole purport of the statement and pleading of evidence No. 2.

Therefore, the plaintiff's assertion 1 is without merit.

B. ② In light of the argument, the evidence presented by the Plaintiff alone is insufficient to acknowledge that the secured debt of the instant right to collateral security does not exist, and there is no other evidence to acknowledge this otherwise.

Rather, according to the purport of Eul evidence No. 1 and the whole pleadings, the defendant can only recognize the fact that the collateral security right of this case was established in order to secure the defendant's claim of KRW 150,000,000,000, which is the debtor of the collateral security right of this case.

Therefore, it is true.

참조조문

-민법 제110조 제2항

유사 판례

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