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1. The defendants' appeal is dismissed.
2. The costs of appeal are assessed against the Defendants.
Purport of claim and appeal
1..
Reasons
1. Basic facts
A. On November 20, 2009, H, upon the Plaintiff’s request, issued a payment order of KRW 97,349,783 and delay damages for KRW 68,024,641 among them to the Plaintiff. The payment order of KRW 97,349,783 was finalized on December 9, 2009.
B. On March 2, 2001, H completed the registration of establishment of a mortgage (hereinafter “registration of establishment of a mortgage of this case”) consisting of the maximum debt amount of 40,000,000 won with respect to each real estate stated in the separate sheet, to L on March 2, 2001.
C. H is currently insolvent. D.
I died on February 27, 2012, and Defendant A’s spouse and the rest of the Defendants are the deceased’s children.
[Ground for Recognition] A: Facts without dispute, entry of Gap evidence 1 to 3, purport of the whole pleadings
2. The parties' assertion
A. Since the Plaintiff’s instant right to collateral was created without a secured claim, its registration is null and void. Even if it is not so, the extinctive prescription of the secured claim expires, the Defendants, the heir of I, are obligated to implement the registration procedure at the Plaintiff’s request by the heir of H.
B. The Defendants 1) lent KRW 40,000,000 to H without fixing the due date on February 28, 2001, and was established to secure the return thereof. 2) H paid KRW 1,00,000 as interest interest in May 30, 201 each year, including the payment of KRW 1 million to I on May 30, 201. Thus, the statute of limitations was interrupted.
3 In addition, H has waived the benefit of the completion of extinctive prescription by failing to actively assert it after the expiration of extinctive prescription.
3. Determination
A. (1) Whether a secured claim is established or not is a mortgage established by setting only the maximum amount of the secured debt and reserving the determination of the debt in the future (Article 357(1) of the Civil Act). In the future, multiple unspecified claims arising from the continuous transaction relationship is set at the settlement period in the future.