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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. On June 14, 2016, G Co., Ltd. (hereinafter “Nonindicted Co., Ltd.”) concluded a mortgage agreement with the Defendant regarding KRW 150 million with the maximum debt amount, KRW 150,000,000 with the Defendant, the debtor company, and the mortgagee as the Defendant on June 14, 2016, with respect to the registration of the establishment of the said neighboring mortgage (hereinafter “the instant mortgage agreement”), and concluded a mortgage agreement with the Plaintiff on July 25, 2016, with the maximum debt amount of KRW 360,000,000 with the Plaintiff, the debtor company, and the mortgagee as the Plaintiff, and completed the registration of the establishment of the said neighboring mortgage on July 26, 2016.
B. On December 21, 2018, the execution court distributed KRW 148,972,556 to the Defendant, who is a mortgagee, and KRW 19,18,361 to the Plaintiff, who is a mortgagee, as a right to collateral security. Accordingly, the Plaintiff filed the instant lawsuit on December 28, 2018, stating an objection against the total amount of dividends against the Defendant.
[Reasons for Recognition] Unsatisfy, Gap 1, 2, 4 evidence, the purport of the whole pleadings
2. The assertion and judgment
A. The Plaintiff’s assertion 1) The Defendant’s claim secured by the instant right to collateral security was KRW 100 million and the interest or delay damages calculated by the ratio of “2.5% per annum” from June 14, 2016 to December 21, 2018, which was the date of distribution, and KRW 106,308,419, which was the date of distribution, and thus, it is unreasonable that the executing court paid dividends to the Defendant in excess of the above amount. 2) The interest “2.5% per annum” stated on the Defendant’s loan certificate is a clerical error, and the actual interest is “25% per annum,” and the dividends against the Defendant is justifiable.
B. On June 14, 2016, the non-party company borrowed KRW 100 million from the Defendant as of September 14, 2016, and established the instant collateral security to secure the Defendant’s obligation for the said loan (hereinafter “instant loan”). The representative director of the non-party company first borrowed the amount of KRW 100 million from the Defendant on September 14, 2016.