The scope of secured debt of the establishment of a neighboring mortgage shall be limited to the maximum maximum debt amount.

In light of the fact that the scope of the secured debt is not limited to the existing national tax debt, etc., it is reasonable to deem that the scope of the secured debt includes the national tax debt that has already been, or is to be, borne within the scope of the maximum debt amount.

2015Gahap101023 De-mortgage

Park ○

Korea

Mar. 18, 2016

April 20, 2016

1. The part concerning the claim for cancellation of the registration of seizure among the lawsuits in this case shall be dismissed.

2. The Defendant received ○○○○, ○○, and ○○○○ from the Plaintiff, and followed the procedure for registration of cancellation of the registration of the establishment of a mortgage near the area completed on May 30, 2014 by the Changwon District Court, Changwon District Court, Busan District Court, as to the real estate listed in paragraph (2) of the attached Table attached to the Plaintiff.

3. The plaintiff's remaining claims are dismissed.

4. Of the costs of lawsuit, 4/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

As to the real estate listed in paragraph (1) of the attached list, the Defendant implemented the procedure for cancellation registration of the registration of seizure completed by the Changwon District Court, Changwon District Court, Masan Branch, on March 7, 2014, with respect to the real estate listed in paragraph (1) of the attached list, and implemented the procedure for cancellation registration of the registration of the establishment of a mortgage completed by the Changwon District Court, ○○○○○, and ○○○○○○○○ upon receipt from the Plaintiff, and simultaneously implemented the procedure for cancellation registration of the registration of the establishment of a mortgage completed by the Changwon District Court, Changwon District Court, Masan Branch

1. Facts of recognition;

A. For the reason of the delinquency in national tax in the Seoul Special Metropolitan City, Do (hereinafter referred to as “Seoul Special Metropolitan City”), the Defendant issued a seizure disposition on August 13, 2013 and March 6, 2014 on the land indicated in the attached Table No. 1 (hereinafter referred to as “instant land”) located in ○○○○-dong, ○○-dong, ○○, and the land indicated in the attached Table No. 1 (hereinafter referred to as “instant building”), which was owned by the said company, on the ground of the delinquency in payment of national tax in the Seoul Special Metropolitan City, Do (hereinafter referred to as “Seoul Special Metropolitan City”) and the registration of seizure based on the above seizure disposition (hereinafter referred to as “registration of seizure”) was completed at the Defendant’s commission.

B. After that, on May 21, 2014, the Plaintiff agreed to repay on behalf of the Plaintiff the secured debt for the registration of the establishment of a mortgage and the secured debt for the registration of the seizure of this case, which was completed in each of the above real estate, in purchasing the instant building ○○ and the instant land from △△△△△△,

C. The head of the △△△ Tax Office under the Defendant-affiliated Tax Office shall add five cases in arrears in around May 2014 to the national tax of △△△△.

The disposition on default on ○○○○, ○○○, and ○○○○○○, was postponed until June 30, 2014. On May 21, 2014, a contract was concluded with the Plaintiff and the Yellow △△△△△△ on the provision of security (hereinafter “instant security for tax payment”) for national tax liability of △△△, the same building owned by the Plaintiff (real estate indicated in paragraph (2) of the attached Table), and the same building owned by △△△△△, △△, and the same building owned by △△△△, and concluded with the Plaintiff and the Yellow △△△△△, for each real estate on May 30, 2014 (hereinafter “instant security for tax payment”). On May 30, 2014, the registration of the establishment of a mortgage (hereinafter “the creation of a mortgage”).

D. After that, the Plaintiff’s delinquent national tax amount in arrears in the △△△△ on August 20, 2014 and April 27, 2015

○○○○○, ○○○, and ○○○○○○, paid the Defendant, and the Defendant cancelled the registration of the instant seizure on August 27, 2014 regarding the instant building’s heading △△△, and ② the instant registration of the establishment of the mortgage on the heading of the instant building on April 30, 2015.

E. Meanwhile, as of the date of closing argument in the instant case, the amount of delinquent national taxes of △○○, ○○, and ○○○○○.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 11, Eul evidence Nos. 1, 2 and 3, the purport of the whole pleadings

2. Judgment on the Plaintiff’s claim for cancellation of attachment registration

As long as the Plaintiff offered the instant building Nos. 1 and 11 to the Defendant as security for tax payment in accordance with the instant security agreement, the Defendant asserted that the Defendant was obligated to cancel the instant seizure registration as agreed upon in the said agreement, and sought a cancellation registration procedure for the instant seizure registration completed on the instant land against the Defendant.

The registration of seizure and cancellation of registration of real estate as a disposition of national tax in arrears shall be entrusted to the competent registry office, and the cancellation of seizure and seizure shall be the administrative disposition of the head of the competent customs office, so a general civil lawsuit cannot seek cancellation of the registration of seizure unless it falls under the invalidation of validity (see, e.g., Supreme Court Decisions 77Da2138, Jun. 27, 1978; 85Da81, Nov. 12, 1985; 85Da325, Nov. 12, 1985).

In this case, the Plaintiff sought the cancellation of the above attachment registration on the ground that the Defendant agreed to cancel the attachment registration of this case, and thus, it does not seek the cancellation of the attachment registration by asserting that the attachment registration of this case or the attachment disposition, which served as the basis for the registration of this case, is null and void as a matter of course, and even if the Defendant agreed to cancel the attachment registration of this case according to the Plaintiff’s assertion, the above attachment registration of this case does not become null and void as a matter of course, and thus, it is not allowed for the Plaintiff to seek the cancellation of the attachment registration

Therefore, the Plaintiff’s claim for cancellation of the attachment registration of this case is unlawful.

3. Determination on the Plaintiff’s claim for cancellation of the registration of creation of neighboring mortgage

The Plaintiff asserts that the Defendant is obliged to cancel the registration of the establishment of the creation of the instant nearby real estate listed in the attached Table 2 at the same time as the Plaintiff received payment from the Plaintiff of ○○○○, ○○○, and ○○○○○○○○, which was the national tax in arrears of △△ at the time of the completion of the registration of the establishment of the creation of the instant nearby collateral to the Defendant.

Therefore, as to whether the Plaintiff and the Defendant determined the secured amount of the mortgage of this case as ○○,○○, and ○○○○○○○○○○○○○, and the Defendant’s establishment of the mortgage of this case, there is no evidence to acknowledge it otherwise. Rather, the following circumstances, which can be acknowledged by the overall purport of the entries and arguments in Gap’s Nos. 5, 6, and Eul’s No. 2, can be determined by the entire purport of the arguments and arguments, namely, ① in the mortgage contract of this case, the Plaintiff and the Defendant did not set specific tax items or time limit for payment concerning the national tax obligation of △○,○○, and ○○○○○, and ○○○, which constitute the secured amount, while setting the maximum debt amount as the maximum debt amount, ② in Article 1, the document of the mortgage contract of this case, stating that “the debtor establishes the secured amount as of the date of the establishment of the mortgage to secure all the obligations of the Defendant or the guarantor within the scope of the secured amount.”

In addition, when the establishment registration of a neighboring mortgage was completed for the purpose of debt security, the debtor's debt repayment is the prior performance obligation prior to cancellation of the establishment registration prior to the cancellation of the establishment registration, and when the parties seek cancellation of the establishment registration of a neighboring mortgage due to the receipt and repayment of the amount claimed as the remaining secured debt due to disputes between the parties as to the scope of the secured debt secured by the right to collateral, it shall be deemed that the purport of seeking cancellation on the condition of payment of the remaining secured debt as revealed in the course of the lawsuit is also included, and it shall be deemed that there is a benefit to claim in advance as a lawsuit for future performance (see, e.g., Supreme Court Decisions 92Da5249, Apr. 27, 1993; 96Da

In light of these legal principles, the Plaintiff filed a simultaneous performance judgment claiming that the secured debt amount of the instant nearby mortgage establishment registration is KRW ○○,○○○, and○○○○○○○○○○, and that the amount of the instant secured debt was repaid and repaid to repay the secured debt amount and seeking cancellation of the registration of the establishment of the instant neighboring mortgage registration, but the delinquent national tax amount of △○,○○, and○○○○ as of the date of closing the argument in the instant case was as seen earlier, the delinquent national tax amount of △○,○○, and○○○ as of the date of closing the argument in the instant case. Accordingly, the Defendant received the above delinquent tax amount from the Plaintiff, and then, the Plaintiff is obligated to implement the registration procedure of cancellation

4. Conclusion

Therefore, the part of the claim for cancellation of the registration of seizure among the lawsuit of this case is unlawful, and the part of the claim for cancellation of the registration of creation of a neighboring mortgage is accepted within the scope of the above recognition, and the remaining claims are dismissed as it is so decided as per Disposition.