(영문) 수원지방법원 2015.11.27 2015나12090

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(영문) 수원지방법원 2015.11.27 2015나12090

근저당권말소등기

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1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

1..

Reasons

1. Basic facts

A. The Plaintiff purchased the instant real estate from D on December 15, 2003, and completed the registration of ownership transfer on January 2, 2004.

B. On January 8, 2004, the Plaintiff borrowed KRW 15 million from C on January 9, 2004, and completed on January 9, 2004, the establishment registration of the mortgage over the instant real estate amounting to KRW 30 million with respect to the instant real estate.

C. C received KRW 32,200,000 from the Defendant on November 30, 2004, and terminated the said mortgage contract with the Plaintiff. On the same day, the Plaintiff concluded a mortgage contract with the Defendant on the same day. On December 3, 2004, after cancelling the registration of the establishment of the said real estate in the name of C, C completed the registration of the establishment of the instant neighboring mortgage amounting to KRW 50,000,000 for the Defendant regarding the instant real estate.

【Ground for recognition】An absence of dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. The Defendant’s judgment on the Defendant’s main defense was in title trust with the Plaintiff, and thus, the registration of transfer of ownership in the Plaintiff’s name is null and void. The Plaintiff, not the owner, asserts that the Plaintiff did not have the standing to file a claim for cancellation of the registration of transfer of ownership in the instant neighboring area. However, it is insufficient to recognize the fact that the Defendant and C had a title trust agreement between the Defendant and C, and there is no other evidence to acknowledge it. Therefore, the Defendant’s assertion on

3. Determination as to the cause of action

A. The plaintiff asserted that the secured claim of the registration of the establishment of a new mortgage of this case is a loan claim, and the ten-year extinctive prescription has expired, and thus, the registration of the establishment of a new mortgage of this case should be cancelled.

B. According to the above facts, the establishment registration of the neighboring mortgage of this case is for securing the Defendant’s loan claim of KRW 32.2 million against the Plaintiff or C (hereinafter “loan claim of this case”).

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