In a lawsuit claiming for the cancellation of the registration of the establishment of a mortgage filed by a person who has pledged his/her property to secure another's property, whether the act of the creditor and the mortgagee's response to the secured debt constitutes "request under Article 168 (1) of the Civil Code, which is the

Since a person who has pledged his/her property to secure another person's obligation is liable for physical liability to the creditor, and thus a person who has pledged his/her property to obtain a direct benefit from the extinction of the secured debt, he/she can claim the completion of the extinctive prescription. However, since a person who has pledged his/her property to secure another person's property is not liable for any obligation to the creditor, even though he/she requested a judgment of dismissal and claimed the existence of the secured debt in a lawsuit claiming the cancellation registration procedure for the establishment of mortgage filed by the mortgagee on the ground of the absence or extinguishment of the secured debt, it cannot be deemed as having directly filed a judicial claim against the debtor. Therefore, it does not constitute an "claim" under Article 1

Article 168 Subparag. 1, 170, 341, and 370 of the Civil Act

Plaintiff

Defendant (Law Firm New century, Attorney Jeong Jong-sung, Counsel for the defendant-appellant)

Supreme Court Decision 2001Da81948 Delivered on July 12, 2002

Seoul District Court Decision 2002Na37411 Delivered on May 13, 2003

The part of the judgment of the court below concerning the request for cancellation of the registration procedure for the establishment of a mortgage near the ground for invalidity of the cause is reversed, and that part of the case is remanded to the Panel Division of the Seoul District Court. The remaining appeal

1. The court below rejected the plaintiff's assertion that the contract to establish a mortgage on the real estate of this case entered into between the plaintiff and the reorganization company in order to secure the debt owed to the non-party 1, the liquidation company of the reorganization company of this case, constitutes an expression of intent by fraud of the reorganization company, the non-party 1 made a condition that the non-party 1 continue to operate a creative metal, or the liquidation company made an agreement to cancel the registration of the establishment of a mortgage on the plaintiff, or the non-party 1 and the non-party 2 and the non-party 3 agreed that the non-party 1 and the non-party 2 are exempted from the obligation for the payment of the goods of this case, respectively, on the grounds that there is no evidence to prove the above alleged facts without reliance on all the evidence

Examining the relevant evidence in light of the records, the above judgment of the court below is just and acceptable, and there is no violation of the rules of evidence as alleged in the grounds of appeal.

2. (1) On November 7, 1995, the court below found the Plaintiff’s assertion that the period of extinctive prescription has expired unless the claim for commercial activities against Nonparty 1 was exercised five years, and that the Defendant actively rejected the Plaintiff’s claim on the premise that the period of prescription had expired since the Plaintiff’s claim for the payment of the goods was terminated on the ground that the period of prescription had expired on November 7, 1995, as well as on November 5, 196,940, which was equivalent to KRW 482,59,940. Nonparty 1’s claim for the payment of the goods was established as a collateral. However, it is clear that the Defendant actively rejected the Plaintiff’s claim for the payment of the goods through the written answer, which was the cause of interruption of prescription, on the ground that the period of prescription had expired on the part of the claim for the payment of the goods, which was the cause of the claim for the establishment of a collateral, in a lawsuit demanding the cancellation of the establishment of a collateral, and that the Defendant actively rejected the claim.

(2) However, we cannot agree with the lower court’s aforementioned determination as to the interruption of extinctive prescription for the following reasons.

In a lawsuit claiming the cancellation of the registration of the establishment of a mortgage instituted by a debtor and a mortgagee on the ground of non-existence or extinction of the secured debt, if the creditor and the mortgagee claims the existence of the secured debt while seeking a ruling of dismissal, such assertion is equivalent to a judicial claim, and the interruption of the extinctive prescription becomes effective as to the secured debt. However, in order to secure another's debt, a surety who has created a security right on his own property has a physical liability to the creditor, and thus has a direct interest to the creditor due to the extinction of the secured debt, and thus, he can assert the completion of the extinctive prescription. However, in a lawsuit claiming the cancellation of the registration of the establishment of a mortgage instituted by a mortgagee on the ground of non-existence or extinction of the secured debt, even if the mortgagee and the mortgagee have claimed the existence of the secured debt, it cannot be deemed that the mortgagee have filed a judgment of dismissal and filed a judicial claim directly against the debtor. Therefore, it does not constitute "request under Article 168 subparagraph 1 of the Civil Act, which provides

According to the facts duly established by the court below, the plaintiff is merely a person who has pledged the right to collateral security for the purpose of securing the debt to the liquidation company of the non-party 1, and does not bear a debt to the reorganization company or the defendant. Therefore, in this case where the plaintiff seeks the procedure for registration of cancellation of the establishment of collateral security for the reason that the secured debt has expired by prescription, even if the defendant, who is the creditor and the administrator of the reorganization company, who is the creditor and the mortgagee, claimed the existence of the secured debt while seeking a ruling of dismissal, such assertion does not constitute a claim under Article 168 subparagraph 1 of the

Unlike this, the judgment of the court below that the defendant's response act constitutes a ground for suspending extinctive prescription as to the secured claim in the lawsuit claiming for the cancellation of the registration procedure for the establishment of a neighboring mortgage by the plaintiff constitutes a ground for suspending extinctive prescription as to the secured claim, which affected the conclusion of the judgment, is erroneous in the misapprehension of law. Therefore, this part of the judgment of the court below cannot be reversed.

3. Therefore, the part of the judgment of the court below regarding the claim for cancellation of registration of the establishment of a neighboring mortgage on the ground of invalidity of the cause is reversed, and that part of the case is remanded to the court below. The remaining appeal is dismissed. It is so decided as per Disposition by the assent

Justices Jack-dam (Presiding Justice)