(영문) 서울동부지방법원 2017.01.18 2015가단135461

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(영문) 서울동부지방법원 2017.01.18 2015가단135461

근저당권말소

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1. The plaintiff's claim is dismissed.

2. This Court shall suspend compulsory execution (Seoul Eastern District Court 2015Kadan243).

Reasons

1. Facts of recognition;

A. On September 25, 2013, the Plaintiff concluded a mortgage agreement between B (trade name before the change: D; hereinafter “Nonindicted Company”) with respect to the instant real estate owned by the Plaintiff, with the maximum debt amount of KRW 1 billion, and with the debtor and the non-party company (hereinafter “the instant mortgage agreement”). On September 27, 2013, the Plaintiff concluded a mortgage agreement with the Plaintiff and the non-party company (hereinafter “the instant mortgage agreement”). The instant mortgage agreement was completed pursuant to the instant mortgage agreement.

B. Article 1 of the mortgage contract of this case provides that “The mortgagee of the mortgage of this case shall secure the creditor’s obligations, such as a loan certificate, sheet, and certificate of payment, signed and sealed by the debtor as the sole or a guarantor, within the scope of the maximum debt amount, and all obligations arising from the issuance, endorsement, and guarantee of all bills and checks or all obligations arising from commercial transactions.”

C. On March 21, 2014, the non-party company was decided to commence rehabilitation procedures with the Seoul Central District Court 2014 Mahap555, and at that time the defendant, the representative director of the non-party company, was the administrator of the non-party company.

[Ground for Recognition: Facts without dispute, Gap evidence 2, Eul evidence 1 (including the paper number), the purport of whole pleadings]

2. The parties' assertion and judgment

A. The plaintiff asserted that the secured debt of the instant right to collateral security is limited to the plaintiff's debt for the purchase of goods against the non-party company. Since the plaintiff fully repaid the remaining goods to the non-party company, the registration of establishment of the instant right to collateral security should be cancelled. Accordingly, the defendant offered the instant real estate to the non-party company for Malaia Co., Ltd. (hereinafter "Malaia"), and thus, the secured debt of the instant right to collateral security in addition to the goods price claim by the plaintiff.

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