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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. The following facts do not conflict between the parties, or can be acknowledged in full view of the whole purport of the pleadings in Gap evidence Nos. 1-1, 2, 3, 4, and 5, and there is no counter-proof.
On February 2, 2010, the Plaintiff remitted KRW 40,000,000 to the account of Nonparty D, a fraud of Nonparty C, and KRW 10,00,000 to the Defendant’s account, a child of Nonparty C, on April 20, 2011.
B. Nonparty C prepared to the Plaintiff a certificate of borrowing KRW 40,000,000 to the effect that, within one year from September 2, 2010, Nonparty C would have requested the Plaintiff to repay within one year prior to the Plaintiff’s delivery.
C. On April 20, 201, the Plaintiff: (a) drafted a document establishing a mortgage with respect to the Defendant, the obligor, the maximum debt amount of which is KRW 50,00,000, and the Plaintiff with respect to the building owned by the Defendant; (b) Nonparty C affixed the Defendant’s seal on the document establishing the mortgage; and (c) Nonparty C affixed the Defendant’s seal on the document establishing the mortgage.
2. Determination
A. The Plaintiff’s assertion was issued upon Nonparty C’s request from Nonparty C to lend 40,000,000 won to Nonparty D’s account on February 2, 2010. On April 20, 2011, Nonparty C asked Nonparty C to lend 10,000,000 won to the Defendant’s account and concluded a mortgage contract by remitting 10,000 won to Nonparty C’s account. The Defendant primarily is the obligor, and the Defendant is obligated to repay the said amount as a surety’s property to secure another’s property.
B. First of all, as to whether the defendant is the debtor against the plaintiff, even if based on the plaintiff's assertion itself, since the person who borrowed money from the plaintiff is the non-party C, the debtor is not the non-party C and the defendant. Even according to the above fact of recognition, the defendant merely lent the account in order to receive the money borrowed from the plaintiff, and the contract to establish a right to collateral security is concluded on the real estate owned by the defendant.