(영문) 부산지방법원서부지원 2019.01.29 2018가단102742

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(영문) 부산지방법원서부지원 2019.01.29 2018가단102742

근저당권말소

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1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. On August 23, 2017, the Defendant does not have any dispute between the parties that completed the registration of creation of a mortgage on the purport of the claim (hereinafter “registration of this case”) with respect to real estate indicated in the separate sheet owned by the Plaintiff as indicated in the separate sheet owned by the Plaintiff as the obligor C (the head of the Plaintiff) and the maximum debt amount of KRW 250 million.

2. The plaintiff's assertion asserts that the registration of this case in this case is completed by the power of attorney, etc. in the name of the plaintiff forged by C, and is null and void.

3. Determination

A. Legal real estate registration is presumed to have been completed by legitimate grounds for registration (see, e.g., Supreme Court Decision 2012Da84479, Oct. 29, 2015). With respect to the establishment registration of a neighboring mortgage, the establishment registration of a mortgage is presumed to have been duly completed even if the third party was involved in the disposal of the mortgage, not by the owner’s direct disposal, but by the third party as the owner’s representative, even if the third party was involved in the disposal of the mortgage, the establishment registration of a mortgage is presumed to have been duly completed. Therefore, the owner who claimed the cancellation of the registration on the ground that the registration is void. In other words, the third party did not have the right

The burden of proving that there are circumstances, etc. that are likely to suspect that the registration procedure has not run lawfully, such as forging the registration documents of the owner by the third party, etc.

(See Supreme Court Decision 2009Da37831 Decided September 24, 2009, etc.) B.

Judgment

As to the instant case, a certified judicial scrivener D applied for the registration of this case with the authority delegated by the Plaintiff and the Defendant. The fact that C affixed the Plaintiff’s portion of the power of attorney attached to the application for registration is without dispute between the parties. Thus, it is insufficient to recognize the fact that C had the authority to affix the Plaintiff’s seal, and unless there is any other evidence to acknowledge it.

참조판례

-대법원 2009. 9. 24. 선고 2009다37831 판결

-대법원 2015. 10. 29. 선고 2012다84479 판결

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