(영문) 창원지방법원 2015.04.14 2014나9629 | 리걸엔진

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(영문) 창원지방법원 2015.04.14 2014나9629

근저당권말소 등

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1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The plaintiff's claim against the defendant is dismissed.

3...

Reasons

1. On February 24, 2011, the deceased G, the husband of the Plaintiff’s basic facts (hereinafter “the deceased”) concluded a mortgage agreement with the Defendant regarding the instant real estate owned by the Plaintiff with the maximum debt amount of KRW 50 million, the debtor, and the mortgagee, with the Defendant, and completed the registration of the establishment of a neighboring mortgage to the Defendant.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3, purport of the whole pleadings

2. The Plaintiff’s assertion not only did the Plaintiff affix a seal or a seal on the application document for the registration of the establishment of a mortgage of this case, but also did not exist the secured debt, and thus, the registration of the establishment of a mortgage of this case is null and void.

Therefore, the defendant is obligated to implement the procedure for registration of cancellation of the registration of the establishment of the neighboring mortgage of this case to the plaintiff.

3. Determination

A. In the event that the registration of establishment of a mortgage in the vicinity of the relevant law does not result from a direct disposal by the owner of the real estate, but from a third party involved in the disposal of the real estate, if the mortgagee claims that the third party is the agent of the owner of the real estate or the third party is a person in special status relationship with the owner of the real estate, the registration of establishment of a mortgage is presumed to have been completed lawfully even if the mortgagee did not claim that the third party is the agent of the owner of the real estate, and even if the third party is not the agent of the owner of the real estate, the registration of establishment of a mortgage is presumed to have been completed lawfully

The third party bears the burden of proving the invalidity of the registration procedure, such as forging the registration documents of the owner of the real estate, etc.

Supreme Court Decisions 93Da18914 Decided October 12, 1993, 94Da41010 Decided May 9, 1995, 2009Da37831 Decided September 24, 2009, and Supreme Court Decision 27 March 27, 2014

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