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(영문) 서울남부지방법원 2018.02.08 2016나60612
근저당권말소
Text

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. As to the real estate indicated in the attached list owned by the Plaintiff, the establishment registration of the right to collateral security (hereinafter “instant right to collateral security”) was completed on November 2, 2009, the Seoul Southern District Court Gangseo-gu Office of 75515, which was received on November 2, 2009, with the maximum debt amount of KRW 200,000,000,000, the debtor, the defendant, the mortgagee, and the defendant B (hereinafter “the defendant”).

B. On March 16, 2015, the Defendant transferred the instant right to collateral security to the Intervenor succeeding to the Defendant on the ground of transfer of contract as of March 9, 2015.

[Ground of recognition] Unsatisfy, Gap evidence 1, Eul evidence 3

2. The assertion;

A. (1) The Plaintiff’s assertion (1) his/her father/he/she transferred D (hereinafter “D”) to the Defendant on or around September 2009, and continued to bear D’s obligation. The Korea Credit Guarantee Fund requested the extension of D’s loan guarantee from D to the Defendant as a joint guarantor of D’s new representative director around October 2009.

Accordingly, the defendant demanded C to guarantee the security of damage caused by the indemnity guarantee instead of entering C as a joint and several surety for the indemnity obligation of the Credit Guarantee Fund, and the mother of C, the plaintiff, the mother of C, completed the establishment registration of the mortgage of this case in the future of the defendant.

Since then, E Co., Ltd. taking over D has fully repaid its loan obligations.

(2) The Plaintiff did not borrow any money from the Defendant or the Intervenor succeeding to the Defendant at the time of the registration of the instant right to collateral security, and thus, the instant right to collateral security is null and void due to the failure or extinguishment of the secured claim.

B. The Defendant’s Intervenor’s assertion (1) the Plaintiff operated D along with his/her father C, etc. as a family enterprise. Around January 2007, in order to obtain a loan from the Korea Credit Guarantee Fund with its operating funds, the Plaintiff purchased land and buildings located in the Gecheon-gun, Chungcheongnamcheon-gun, Chungcheongnam-do. The Defendant’s succeeding intervenor around that time.

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