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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
Around May 208, E, which practically operates D Co., Ltd. (hereinafter “D”)’s summary of the Plaintiff’s assertion as to the cause of the claim, borrowed a promissory note with the face value of KRW 30 million issued by F from F Co., Ltd. (hereinafter “F”) in order to raise funds for D’s operating capital.
E requested the Plaintiff to set up a collateral on the instant real estate owned by the Plaintiff in order to provide collateral for the debt following the borrowing of Promissory Notes. Accordingly, on August 14, 2008, the Plaintiff set up a collateral on the instant real estate with a maximum claim amount of KRW 40 million, and a collateral security (hereinafter “instant collateral security”). At F’s request, the mortgagee was the Defendant registered as F’s director.
D and E respectively discounted one promissory note with a face value of KRW 20,90,000 issued by F (hereinafter “Second Promissory Notes”) and one promissory note with a face value of KRW 60,000,000 (hereinafter “third Promissory Notes”). However, even if the amount of discount was fully paid to F, the said Two Promissory Notes did not fully pay the amount of discount to F, and as such, D and E paid the total face value of KRW 80,90 to each holder of each Promissory Notes as an endorser, respectively, and recovered the Promissory Notes.
D and E, following the collection of Promissory Notes Nos. 2 and 3, held F with the claim of KRW 8,090, and this offset against the claim secured by the instant right to collateral was extinguished by set-off against the claim secured by the instant right to collateral.
The right to collateral security of this case shall be cancelled since all the secured claims have ceased to exist.
Judgment
In principle, when the establishment of a mortgage is registered for the purpose of mortgage security for the nature of the claim secured by the mortgage of this case, the creditor and the mortgagee should be the same person, but a third party, who is not a creditor, should be registered for the establishment of a mortgage.