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(영문) 서울중앙지방법원 2016.04.28 2015가단5274733
근저당권설정등기말소청구
Text

1. On April 3, 2012, the Defendant: (a) on each land indicated in the separate sheet to the Plaintiff, the Jung-gu District Court’s Seoul District Court’s annual registry office.

Reasons

1. Basic facts

A. On March 29, 2012, the Plaintiff purchased KRW 27,177m2 (hereinafter “instant land”) from the Gyeonggi-do Seoul Incorporated Company (hereinafter “C”) for KRW 485,00,000,000,000 as a down payment, and paid KRW 150,000,000 as a down payment. On April 3, 2012, the Plaintiff received the intermediate payment of KRW 50,000 as well as the registration of ownership, and completed the remainder payment on June 10, 2013.

B. C had completed the registration of ownership transfer to the Plaintiff, before completing the registration of ownership transfer, completed the registration of creation of a neighboring mortgage (hereinafter “registration of creation of a neighboring mortgage”) on April 3, 2012 with respect to the land of this case as KRW 175 million with the maximum debt amount of KRW 175 million in the company’s actual owner E’s title.

C. After that, the instant land was divided into each land listed in the separate sheet.

[Ground of recognition] Facts without dispute, Gap through 11, witness E's testimony, purport of the whole pleadings

2. The parties' assertion

A. The registration of the establishment of a mortgage on the Plaintiff’s assertion of this case is null and void due to the lack of the original secured claim. Even if the purchase and sale remainder claim against the Plaintiff was secured by the secured claim, this should be cancelled since it was fully repaid.

B. Since the registration of creation of a mortgage of the Defendant’s assertion that the secured debt of this case was the remainder of the purchase and sale against the Plaintiff, it is not a registration invalidation of the cause, and the Defendant was not able to obtain the payment of the loan claim of KRW 15 million against E, and thus, it should not be cancelled.

3. On the following grounds, the registration of the establishment of a mortgage of this case should be cancelled inasmuch as the ground for the establishment of a mortgage of this case is invalid or the secured debt is fully repaid.

There is no evidence to acknowledge the existence of a claim against F's obligor C at the time of establishment of the right to collateral security.

B. The secured claim against the plaintiff.

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