(영문) 서울동부지방법원 2017.04.27 2016가단103393

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(영문) 서울동부지방법원 2017.04.27 2016가단103393

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. As to the instant real estate owned by the Plaintiff on April 6, 2015, the Cheongju District Court rendered that the establishment registration of a neighboring mortgage was completed under the name of the Defendant, namely, the debtor C and the maximum debt amount of 150,000,000.

(hereinafter “instant collateral security”)

2. Judgment on the plaintiff's assertion

A. The Plaintiff’s assertion 1) around January 2015, the Plaintiff offered the instant real estate as security and borrowed KRW 40 million from C as money for business purposes is required. On a prompt date, upon request of C, the Plaintiff agreed to cancel the registration of creation of a neighboring mortgage on the instant real estate by repaying the loan money. As to the instant real estate, C received the request from the Cheongju District Court No. 9472, Jan. 22, 2015, as the Cheongju District Court No. 9472, Jan. 2, 2015, as to the instant real estate C, the obligor C, the maximum debt amount of KRW 150,000,000 (hereinafter “advance mortgage”).

(2) On June 29, 2015, the registration procedure for cancellation of the registration of the establishment of the instant mortgage was entered. However, since the Plaintiff did not consent or consent to the registration of the establishment of the instant mortgage under the name of the Defendant, the instant right to collateral security is null and void. Therefore, even if the Plaintiff consented to the registration of the establishment of the instant right to collateral security, the Plaintiff seeks implementation of the registration procedure for cancellation, such as the entry of the primary claim, within the scope of KRW 40 million. Therefore, even if the Plaintiff consented to the registration of the establishment of the instant right to collateral security, the instant excess right to collateral security exceeds the scope of delegation, and is beyond the scope of delegation, thereby seeking confirmation of the absence of the portion exceeding KRW 40 million as stated in the preliminary claim. 2) Since a monetary loan agreement between the Defendant and C, a secured obligation of the instant right to collateral security, is both null and void as a false declaration.

Therefore, the procedure of cancellation registration, such as the primary description of the claim, is implemented.

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