Whether the registration of the establishment of a mortgage of this case is invalid when the secured claim does not exist

Since there is no evidence to prove whether there was a legal act establishing the secured claim of the right to collateral security separately from the act of establishing the right to collateral security, the defendant BB must cancel the registration of establishment of the right to collateral security of this case, and the defendant Republic of Korea must express its consent to the registration of cancellation.

Supreme Court Decision 2009Da72070 Decided December 24, 2009

2014da1792 Cancellation of the right to collateral security

AA

Korea

The Republic of Korea shall express its intention of acceptance on the above cancellation registration.

3. Determination

A. Claim against Defendant BB

Judgment on deemed confession (Article 208 (3) 2 and Article 150 (3) of the Civil Procedure Act)

B. Claim against Defendant Republic of Korea

(1) Determination on this safety defense

(A) Summary of Defendant Republic of Korea’s assertion

Plaintiff filed a registration of cancellation of the registration of the establishment of the creation of the instant neighboring mortgage against Defendant BB

the defendant in accordance with the National Tax Collection Act, if the defendant proves that he has won the lawsuit and has received a favorable judgment

The civil country has released the seizure, and in spite of the absence of a simplified remedy procedure under the administrative procedures, the civil country has

filing a lawsuit against Defendant Republic of Korea on the basis of facts not legally identified.

on account of the lack of interest in the lawsuit.

(B) Determination

No. 3 with interest in the registration in the cancellation of an application for cancellation of registration.

The consent of the third party shall be required (Article 57 of the Registration of Real Estate Act) and the right to collateral security shall be secured.

When bonds are seized, the pressure of the secured claim by means of additional registration in the establishment registration of the neighboring mortgage;

The purpose of entering and registering the facts of the category is, if the secured claim of the right of collateral is seized, accompanying the security right.

(1) The seizure of claims secured by the right to collateral security, which is a subordinate right by the court, shall have the effect of the seizure;

For disclosure, if there is no secured claim of the right to collateral security, the seizure name.

Colonel shall be null and void, and in case of cancellation of the right to collateral security, the seizure authority shall have an interest in registration.

The third party has a duty to give his consent to the cancellation of the right to collateral security (hereinafter referred to as "right to collateral security").

Supreme Court Decision 2003Da70041 Delivered on May 28, 2004, etc.

Therefore, the Plaintiff sought the cancellation of the registration of the establishment of the neighboring mortgage of the instant case.

Since the defendant's interest in seeking consent to the cancellation is recognized against the defendant's Republic of Korea attached, the defendant

The main defense of the Republic of Korea is without merit.

(2) Judgment on the merits

The right to collateral security determines only the maximum amount of the obligation to be secured and reserving the determination of the obligation in the future.

such mortgage, which may result in a number of unspecified claims arising from a continuous transaction.

Since a security right is created to secure a certain limit in the future settlement term,

There is a legal act establishing the secured claim of the right to collateral security, separate from the act of establishing the right to collateral security.

and at the time of establishment of the right to collateral security, there was a legal act establishing the secured claim of the right to collateral security.

The burden of proof as to whether or not it exists is on the part of the assertion of its existence (Supreme Court Decision 209 December 24, 2009).

209Da72070 decided Feb. 1, 200

The legal act establishing the secured claim of the right to collateral security, separate from the act of establishing the right to collateral security.

In the absence of evidence to prove whether there was any establishment registration of the instant establishment, Defendant BB had to cancel the registration of the establishment of the instant establishment.

and the defendant's Republic of Korea shall express his/her intention of acceptance on the above cancellation registration.

4. Conclusion

The plaintiff's claim against the defendants shall be accepted in entirety on the grounds of the reasons.

August 13, 2015

August 26, 2015

1. The Plaintiff:

A. Defendant BB performed the registration procedure for cancellation of the registration of the establishment of a neighboring establishment, which was completed by Changwon District Court No. 7116 on February 8, 2007, for the Changwon District Court Magwon District Court 1340 OOMMM on Changwon-si, Changwon-si CCC 1340 square meters.

B. The defendant Republic of Korea expressed his intention of acceptance on the registration of cancellation of the establishment registration of the neighboring mortgage mentioned in the above paragraph (a).

2. The costs of lawsuit shall be borne by each person;

The same shall apply to the order of the Gu office.

1. Facts of recognition;

A. On February 8, 2007, Defendant BB completed the registration of the establishment of a neighboring mortgage (hereinafter referred to as the “registration of establishment of a neighboring mortgage”) with respect to the real estate listed in the first paragraph (a) of the Order No. 1 (hereinafter referred to as the “instant real estate”) on January 27, 2007, based on the contract concluded by January 27, 2007, which was held by Defendant BB. (B) The Defendant Republic of Korea completed the registration of the attachment on November 6, 2013 and November 15, 2013 on the ground that Defendant BB’s national taxes were delinquent, and the heir of the Cho River died on March 3, 2015, that the heir of the instant real estate should own the instant real estate as the Plaintiff’s inherited property division agreement, and that the Plaintiff did not dispute over the registration of establishment of a ownership transfer as to the instant real estate as a whole.

2. Summary of the plaintiff's assertion

Since the registration of the establishment of a mortgage of this case is invalid without the secured debt, Defendant BB is obligated to implement the procedure for the cancellation of the registration of the establishment of a mortgage of this case to the Plaintiff.