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(영문) 광주지방법원순천지원 2015.07.23 2014가단13727
근저당권말소
Text

1. The defendant shall make up for shares of 3/7 to B, and 2/7 shares to C and D, respectively, among the real estate stated in the attached Form.

Reasons

1. Basic facts

A. The Korea Credit Union loaned 25 million won to E on November 5, 1999, setting the due date on March 5, 200.

B. On December 24, 1999, E completed the registration of creation of a neighboring mortgage on December 23, 1993 with regard to real estate indicated in the attached Form, which was based on the mortgage contract dated December 23, 1993, with the maximum debt amount of KRW 30 million.

(hereinafter “The instant mortgage contract” and “the establishment registration of a mortgage of the instant case”).

On July 3, 2006, the Plaintiff acquired 73,425,133 won (i.e., total amount of 18,440,310 won (i.e., unpaid interest of KRW 28,05,291 and KRW 26,763,204) from the Korea Credit Union for the above loan-related claims against E (i.e., KRW 166,328).

E died on November 1, 2006, and jointly succeeded to the rights and obligations of the network E's property as B (3/7 shares), C (2/7 shares), D (2/7 shares) shares.

Since then, on November 27, 2013, the Plaintiff filed a lawsuit against the deceased E’s heir B, C, D, etc. as Seoul Central District Court Decision 2012 Ghana5818495, and received a favorable judgment from the above court on November 27, 2013, and the judgment became final and conclusive around that time.

E. B, C, and D are in insolvent, and the network E, B, C, and D do not have exercised the right to seek the cancellation registration of the establishment registration of the instant neighboring mortgage against the Defendant.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 5 (each number is included; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. The Plaintiff’s assertion ① The instant mortgage contract was concluded in collusion with the Defendant for the purpose of evading obligations, and thus null and void. As such, the establishment of mortgage of the instant case is invalid registration for the reason that there was no substantive relationship. ② Even if the instant mortgage contract was concluded effective, the secured claim of the instant mortgage is extinguished by prescription.

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