[1] Whether a legal act establishing a secured claim of the right to collateral separate from the act of establishing the right to collateral security is necessary for the validity of the right to collateral security (affirmative), and whether there was a legal act establishing the secured claim of the right to collateral security (=the party asserting its existence)

[2] Where the secured claim of the right to collateral security does not exist, the validity of the seizure order against the relevant claim (negative)

[3] In a case where Gap completed the registration of creation of a neighboring mortgage on the real estate owned by Eul as Eul-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-backed, the case holding that the court below erred in the misapprehension of legal principles, since the above seizure should be null and void if Byung's proof is insufficient.

[1] Article 357(1) of the Civil Act, Article 288 of the Civil Procedure Act / [2] Article 357(1) of the Civil Act, Article 228 of the Civil Execution Act / [3] Article 357(1) of the Civil Act, Article 288 of the Civil Procedure Act, Article 228 of the Civil Execution Act

[1] [2] Supreme Court Decision 2003Da70041 Decided May 28, 2004 (Gong2004Ha, 1069) Supreme Court Decision 2009Da72070 Decided December 24, 2009

Plaintiff

Defendant (Attorney Oi-tae, Counsel for defendant-appellant)

Daegu District Court Decision 2010Na3306 Decided December 8, 2010

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

We examine the grounds of appeal.

A mortgage is a mortgage established by settling only the maximum amount of a debt to be secured and reserving the determination of a debt in the future (Article 357(1) of the Civil Act), and is established with the aim of securing a certain limit in a settlement term for the future. Thus, separate from the act of establishing a mortgage, there must be a legal act establishing a secured claim of the mortgage, and the burden of proving whether there was a legal act establishing a secured claim of the mortgage at the time of the establishment of the right to collateral security (see Supreme Court Decision 2009Da72070, Dec. 24, 2009).

Meanwhile, in cases where a claim bearing a right to collateral security is seized, the purpose of registering the seizure of the right to collateral security by means of additional registration in the establishment registration of the right to collateral security is to publicly announce the seizure of the right to collateral security as the seizure of the right to collateral security, which is a subordinate right by the incidental nature of the right to collateral security, is to prevent the seizure of the right to collateral security from being effective if the right to collateral security is seized. Thus, if there is no secured claim of the right to collateral security, the seizure order shall be null and void (see Supreme Court Decision 2003Da7041, May

According to the reasoning of the judgment below, on October 11, 2007, the defendant completed the registration of creation of a mortgage of this case with respect to the real estate of this case owned by the debtor as the defendant and the mortgagee as the non-party, without any cause, for the purpose of evading the creditor's compulsory execution. On November 7, 2007, the plaintiff was ordered to seize and attach claims against the non-party regarding KRW 69,89,972 of the non-party's claim against the non-party's claim against the non-party as the title of execution. The court below determined that the mortgage contract of this case concluded between the defendant and the non-party constitutes a false declaration of conspiracy, and the plaintiff constitutes a third party acting in good faith with a legal interest newly based on a false declaration of conspiracy, and thus the defendant cannot assert the invalidity of the above mortgage contract against the plaintiff.

However, since the defendant only entered into a contract establishing the mortgage of this case and did not have a legal act establishing the claim secured by the mortgage of this case, it is a matter of whether such legal act exists, and if the plaintiff asserts its existence and proof of the plaintiff is insufficient, the seizure of this case is null and void.

Therefore, the court below should have deliberated on whether there was a legal act to establish the secured debt by the instant collateral security between the defendant and the non-party, but it did not properly examine it and accepted the plaintiff's claim. Thus, the court below erred by misapprehending the legal principles on the seizure of the secured debt, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)