2019Gahap1759 Confirmation of the existence of the secured claim

Kim 00

Daejeon Yusung-gu

The service place shall be in the jurisdiction of the Si/Gun/Gu

1. ①

Suwon-si District:

2. Class B B:

Seoul Central Central Government

3. Red Third:

Jung-Eup City

Hanam-si of service place

Defendant 1 and 3 Attorney

Attorney Lee In-bok

d.6.4

.7.9

1. All of the plaintiffs' lawsuits against the defendant are dismissed. 2. Litigation costs are borne by the plaintiff.

With respect to the real property listed in the attached list, Defendant Hong 3 et al. between the Plaintiff and the Defendants

The registration of the establishment of a mortgage completed on May 26, 2009 by the registry office of the local court of the Dong-gu Seoul East District.

Ascertainment that there is no secured debt, and contact on June 25, 2018 with the Seoul Eastern District Court registry office

It is confirmed that the registration of partial transfer of the right to collateral security completed as such is null and void.

1. Basic facts

A. On May 26, 2009, Defendant Hong-dong District Court completed on May 26, 2009, the registration of the establishment of the mortgage of this case (hereinafter referred to as the "mortgage of this case") with respect to the real estate listed in the attached list owned by Defendant Ko-dong District Court (hereinafter referred to as "the apartment of this case") in the attached list No. 500,000,000, and the registration of the establishment of the mortgage of this case (hereinafter referred to as the "mortgage of this case") with respect to the real estate listed in the attached list owned by Defendant Ko-B.

B. Thereafter, on November 10, 2010, Plaintiff registered the instant apartment with the Seoul Eastern District Court’s registry office on November 10, 2010, with the maximum debt amount of KRW 500,000,000, and with the debtor Kim○○, the third priority mortgage creation registration was completed.

C. On September 22, 2014, the Seoul East East District Court’s receipt of the registration office of the Seoul East District Court (hereinafter “Seoul East District Court”) completed a supplementary registration prior to the establishment of the right to collateral security by making the person holding the right to collateral security ○○○, Hu○○○, Kim○○, and Hong ○○○○. As to the instant right to collateral security, the registration cancellation was completed on April 5, 2018 with the Seoul East District Court’s receipt of the registration office of the Seoul East District Court (hereinafter “Seoul East District Court”) under the Seoul East District Court’s receipt of the registration office of the Seoul District Court (hereinafter “Seoul District Court”).

D. On June 25, 2018, the attachment assignment order 2 with respect to the instant claim for the right to collateral security (hereinafter “instant claim”) against Defendant Hong Kong’s Defendant 1 (hereinafter “instant claim”) was issued, and on June 25, 2018, the additional registration for partial transfer of the instant right to collateral security (hereinafter “instant additional registration”) was completed with the Seoul Eastern District Court’s receipt of the maximum debt amount KRW 69,534,246 with the Seoul East Eastern District Court’s registration No. 1).

E. Since then, with respect to the instant apartment, Seoul Eastern District Court No. 2018Ma52416, and the same court No. 2019, the decision to commence voluntary auction was made, and on July 17, 2019, the said voluntary auction procedure (hereinafter “instant voluntary auction procedure”) sold the instant apartment to E Co., Ltd., the registration of establishment and the supplementary registration were entirely cancelled.

F. On August 21, 2019 from the date of distribution of the instant voluntary auction procedure, the distribution schedule was prepared in order of 38,298,568 won with respect to the Plaintiff, who appeared in order of 269,534,246 won with respect to the distribution schedule of this case, and 134,938,228 won with respect to the Defendant (i) with the order of 34,928,180 won with respect to the Seoul Special Metropolitan City Gwangjin-gu, Seoul Special Metropolitan City, and 723,20,200 won with the second order, and 723,80,000 won with respect to the Defendant (i) with the third order, and 134,938,228 won with respect to the distribution schedule, and (ii) with respect to the Defendant (i) with respect to the distribution schedule of this case with respect to the Defendant (i) with the second order with respect to the said distribution schedule, and (iii) with respect to the Defendant (ii) with respect to the said distribution schedule.

G. Since then, the plaintiff filed a lawsuit against the defendant Shin (i) and Hong 33 with Seoul Eastern District Court 2019Gahap1457 in the voluntary auction procedure of this case as Seoul Eastern District Court 2019Gahap1457, demanding the payment of dividends on the distribution schedule prepared as of September 4, 2019. However, on April 23, 2020, the above court held that the apartment of this case was trusted in trust in accordance with the third party registration trust contract in the name of the defendant Ko 1 and Kim 33 with a loan claim exceeding KRW 200,000,000 against the defendant Hong 33 Lee Da, and in order to secure this, the mortgage of this case was established and the debtor's name was registered as defendant Eul (B) who is the trustee of the debtor, and thus, dismissed the plaintiff's claim on the ground that the mortgage of this case is valid. The plaintiff appealed the above judgment, and the appeal was pending in Seoul High Court 2005Na206565.

[Ground for recognition] Unsatisfy, Gap evidence 1, 2, Gap evidence 5, 6 (including each number), Eul evidence 5, the purport of the whole pleadings

2. Determination as to the legitimacy of the lawsuit of this case (Judgment as to the defendant's new ①, red ③'s main defenses)

A. The plaintiff's assertion 1)

Defendant Red ③ did not have the instant claim regarding Defendant Red ②, but Defendant Red ③ established the instant apartment in relation to the instant apartment owned by Defendant High Class ②, and received dividends of KRW 75,916,921 from the instant voluntary auction procedure after the establishment of the instant mortgage in relation to the instant apartment owned by Defendant High Class ②, and Defendant New ② received partial transfer of the instant apartment in relation to the instant apartment in which the absence of the instant claim is subject to attachment and assignment order.

After completing the additional registration of the above, the Plaintiff received dividends of KRW 269,534,246 in the above voluntary auction procedure. Accordingly, the Plaintiff, a subordinate mortgagee with respect to the apartment of this case, could not receive any dividends at all in the above voluntary auction procedure, and the above seizure and assignment order concerning the claim of this case null and void. Thus, the Plaintiff seek against the Defendants confirmation of the non-existence of the debt of this case against Defendant Da 2, Defendant 133 and confirmation of the invalidity of the supplementary registration for partial transfer of the right to collateral security of this case.

2) Defendant New 1, 1, 1, 15

In addition, the registration of the establishment of a neighboring mortgage and the additional registration of this case have already been entirely cancelled from the auction procedure of this case to the sale at the discretion of the plaintiff, and the plaintiff has filed a lawsuit of objection against the defendant (i.e., the defendant) to dispute the distribution at the auction procedure of delegation to the defendant (ii) and Hong Kong, and thus there is no benefit of confirmation against the plaintiff (i.e., the defendant (i) and (iii) Hong.

B. Relevant legal principles

In a lawsuit for confirmation, the subject of confirmation requires that it be the current rights or legal relations. Therefore, barring any special circumstance, verification of the past rights or legal relations is not recognized. Thus, a lawsuit for confirmation of non-existence of a collateral obligation of the right to collateral security is related to past rights or legal dependence upon cancellation of the right to collateral security, and there is no benefit of confirmation (see Supreme Court Decision 2012Da17585, Aug. 23, 2013).

A lawsuit for confirmation requires the benefit of confirmation as a requirement for the protection of rights, and the benefit of confirmation is recognized when a judgment for confirmation is rendered at the time of the most effective means to eliminate the Plaintiff’s rights or legal status imminent unstable danger (see Supreme Court Decision 2018Da28159, Mar. 14, 2019).

2) Determinations

In light of the above legal principles, the part seeking confirmation of the non-existence of the secured debt of this case and confirmation of the invalidity of the additional registration of this case (the substance seems to seek the execution of the cancellation registration procedure) as the lawsuit of this case as the lawsuit of this case that the plaintiff sought confirmation of the non-existence of the secured debt of this case and the invalidity of the additional registration of this case is no benefit of confirmation. In addition, the plaintiff had already filed a lawsuit against the defendant 11 and 33 - on the grounds of the non-existence of the claim of this case. The plaintiff's claim for confirmation of the non-existence of the secured debt of this case and the claim for confirmation of the additional registration of this case cannot be seen as an appropriate means of removal of the plaintiff's rights or legal status.

3. Conclusion

Therefore, since the lawsuit against the plaintiff's defendant is unlawful, it is decided to dismiss all of the lawsuits. It is so decided as per Disposition.

Judges Shin-ho

Judges Equitable

Judge No. Rool

1) As seen in Section A-1 of the following 2.2.A., the Plaintiff’s seizure and seizure of the instant claims, subject to the existence of the instant claims, as seen in Section A-1, and

The order is null and void, and the supplementary registration of this case, which was completed in accordance with the above attachment and assignment order, is null and void, and the supplementary registration of this case is null and void.

As a claim seeking confirmation of nullity is filed, the substance of the claim is to seek cancellation of the additional registration of this case.

2) On the entire registration certificate (Evidence A No. 1) on the apartment of this case, the case number of the seizure order, No. 2018, No. 5407, is written.

section 30.