(영문) 인천지방법원 2018.03.14 2017가단236168

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(영문) 인천지방법원 2018.03.14 2017가단236168

채무부존재확인

Text

1. All of the plaintiff's claims are dismissed.

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

Reasons

1. Basic facts

A. On February 24, 2015, the Plaintiff, under the joint guarantee of C, borrowed KRW 100,000,000 from the Defendant on March 1, 2016, and entered into a monetary loan agreement (hereinafter “instant agreement”) with the purport that the Plaintiff would receive the said loan in the name of D bank account (Account Number E) designated by the Plaintiff.

B. On February 26, 2015, the Plaintiff completed the registration of the establishment of a mortgage (hereinafter “mortgage”) or the registration of the establishment of a mortgage on the instant real estate by the Seoul Central District Court No. 43559, the maximum debt amount of KRW 120,000,000 with respect to the instant real estate, as the Seoul Central District Court received 4359.

C. On August 8, 2017, according to the Defendant’s application for auction based on the instant collateral security, the auction procedure of the instant real estate was initiated with F of the Seoul Central District Court.

[Reasons for Recognition] Each entry in Gap's 1 or 4, and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion did not comply with the contract of this case even though the defendant had a duty to transfer the borrowed amount of KRW 100,000,000 to the Cit Bank account in the name of D.

Therefore, the Plaintiff’s rescission of the instant contract on the ground of the Defendant’s nonperformance. As such, the Plaintiff’s principal amounting to KRW 100,000,000 under the instant contract against the Defendant does not exist, and the registration of the establishment of a mortgage near the instant contract where the secured obligation does not exist should

B. In full view of the overall purport of the pleadings in the statement No. 1 of the judgment, it is recognized that the Defendant remitted KRW 100,000,000 to the CTB account (Account Number E) in the name of D on February 24, 2015.

According to the above facts and facts of recognition, the plaintiff is obligated to pay 100,000,000 won and damages for delay under the contract of this case to the defendant, and the mortgage of this case has the secured obligation.

Therefore, this case.

유사 판례

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