207 Gaz. 2272 Cancellation of the registration of creation of a mortgage

DO

ΔΔΔ

August 17, 2007

September 21, 2007

1. After receiving 32,400,000 won from the Plaintiff, the Defendant performed the procedure for the registration of cancellation of the registration of the establishment of a neighboring mortgage completed by the Daegu District Court No. 5596, Jul. 2, 2003 with respect to the instant real estate by the Plaintiff.

2. The plaintiff's remaining claims are dismissed.

3. Ten minutes of the lawsuit shall be borne by the plaintiff, and the remainder shall be borne by the defendant.

The defendant shall execute the procedure for registration of cancellation of the establishment registration of a neighboring mortgage completed on July 2, 2003 by the Daegu District Court in the month of Daegu District Court and the registry office on the real estate of this case to the plaintiff.

1. Basic facts

The following facts do not conflict between the parties, or if Gap evidence No. 1 and evidence No. 2 (the same as evidence No. 6) are collected from the whole purport of the pleading, it can be acknowledged, and there is no counter-proof.

A. On July 1, 2003, the plaintiff, the plaintiff's husband Gap, and the non-party Eul entered into an agreement with the non-party company Eul to transfer the management rights of the non-party company Eul and pay Gap 100,000,000 won to Eul (hereinafter "the agreement of this case"). In order to secure the above 100,000,000 won for the real estate of this case owned by the plaintiff, the plaintiff, the plaintiff's husband Eul, and the non-party Eul entered into a mortgage agreement with the debtor, the maximum debt amount of 10,000,000 won for the real estate of this case, and completed a mortgage registration (hereinafter "the establishment registration of a neighboring mortgage of this case") on July 2, 2003.

B. On the other hand, on December 18, 2006, Eul transferred the instant right to collateral security and its secured claim to the Defendant, and completed a supplementary registration for the transfer of the instant right to collateral security with the registration office No. 88126, Dec. 19, 2006, in the Daegu District Court month of the Daegu District Court.

2. The assertion of the parties and their determination

A. The parties' assertion

The Plaintiff completed the registration of the establishment of a neighboring mortgage of this case to secure the obligation to pay KRW 100,00,000,000 according to the agreement of this case to Eul, and the Plaintiff and Eul paid KRW 100,60,000 to Eul over 13 occasions between June 29, 2004 and August 12, 2005, and repaid the above KRW 100,60,000,00 in full as the secured claim of the establishment of a neighboring mortgage of this case was extinguished, the registration of the establishment of a neighboring mortgage of this case should be cancelled. Thus, the Defendant who received the registration of the establishment of a neighboring mortgage of this case had the obligation to cancel it to the Plaintiff.

In regard to this, the Defendant asserts that the money the Plaintiff claimed that he paid to Eul is the money that the Plaintiff received from Eul and invested in the non-party A business. The Defendant did not pay for the repayment of KRW 100,000,000 according to the instant agreement. As such, the secured obligation of the instant right to collateral security still exists, the Defendant did not have any obligation to perform the procedure for registration of cancellation of the registration of the establishment of the instant right to collateral security.

(b) the board;

(1) According to the statements in Gap's evidence Nos. 4-1 to 4, the plaintiff, Gap and the non-party company

The above amount of KRW 1,00,00,00 on June 29, 200; KRW 7,00 on June 30, 204; KRW 10,000 on June 15, 200; KRW 10,000 on August 2, 2004; KRW 10,000 on August 2, 200; KRW 5,00 on August 9, 200; KRW 10,00 on June 1, 200; KRW 10,00 on August 20, 204; KRW 10,000 on June 20, KRW 10 on June 20, 204; KRW 10,00 on June 10, 204; and KRW 10,00 on June 20, 200 on June 30, 204; and

(2) As to this, although the Plaintiff was supplied by the non-party company on June 29, 200, the above 900 bit and 500 bitet were 1,000 won on behalf of the non-party company, 7,000,000 won on June 30, 2004, 10,000 won on July 15, 2004, 10,000 won on credit and 10,000,000 won on August 2, 200, 3000 won on the above 300 bitetet were 30,000 won on the above goods, the Plaintiff did not claim that the above 10 bitet was supplied by the non-party company on August 9, 200, 300 won on the above goods, but the Plaintiff had no other reasons to claim that the above 100 bitet was sold on the basis of the agreement between the non-party company and the non-party company's goods.

(3) Meanwhile, among the money claimed by the Plaintiff to the Plaintiff, the remaining money, excluding KRW 33,00,000, which was recognized to have been paid as the price for the goods supplied by the Plaintiff from the Plaintiff, is not paid for the repayment of KRW 100,000 according to the instant agreement, but for the Defendant’s assertion that the Plaintiff invested in the Nonparty A business, there is no evidence to acknowledge it. Therefore, the Defendant’s assertion is without merit.

(4) The theory of lawsuit

Inasmuch as the Plaintiff’s repayment of the secured debt of this case is a prior performance obligation, barring any special circumstance, it is reasonable for the Plaintiff to seek the cancellation registration procedure for the secured debt of this case by asserting the extinguishment of the entire secured debt of this case. However, in the case where the obligor filed a claim for the cancellation registration procedure for the secured debt of this case by asserting that the secured debt of this case was fully repaid, but the obligor failed to extinguish the entire amount due to differences in opinion on the scope of the secured debt, it shall be interpreted that the purport of seeking the cancellation of the registration under the condition of the repayment of the finalized debt of this case is included in the claim. In this case, it is necessary to claim in advance for the cancellation of the registration of the secured debt of this case as a future performance lawsuit (see Supreme Court Decisions 96Da3938, Nov. 12, 1996; 95Da9310, Feb. 23, 1996).

3. Conclusion

Thus, the defendant received 32,400,000 won from the plaintiff, and is obligated to implement the procedure for registration of cancellation of the establishment registration of the establishment of the establishment of the creation of the neighboring real estate of this case to the plaintiff. Thus, the plaintiff is justified within the extent of the above recognition, and the remaining claims are dismissed as it is so decided as per Disposition.

Judges Park Jae-ju