Plaintiff 1 and two others (Attorney Kim Jong-woo, Counsel for the plaintiff-appellant)

Defendant (Attorney Kang Jae-won, Counsel for defendant-appellant)

August 20, 2010

1. The defendant shall implement the procedures for registration of cancellation of the registration of the establishment of a neighboring mortgage, which was made on May 18, 2001 by Jeju District Court No. 17571, as to the shares of each plaintiffs as stated in the separate sheet (2) of co-ownership shares in the separate sheet of real estate in attached Form (1) to the plaintiffs.

2. The costs of the lawsuit are assessed against the defendant.

The primary purport of the claim is as shown in the text of the claim.

In relation to the registration of transfer of the right to collateral security made on September 8, 2009 by Ordinance No. 32545 of the Ministry of Land, Infrastructure and Transport as to each real estate listed in the separate list of real estate(1), it is confirmed that the Plaintiffs’ collateral security obligation against the Defendant based on the above collateral security does not exist beyond KRW 54,086,483 per head of the Plaintiffs.

1. Basic facts

A. On June 20, 199, the Defendant’s husband Nonparty 1 sold the instant dry field to Nonparty 3, a mother-child, for the sale of 5,121 square meters (hereinafter “the instant dry field”) owned by his woman, and promised to purchase each real estate listed in the real estate list (hereinafter “the instant orchard”) in attached Form 1 from the auction proceeds by adding the price and the money he owns to the sale of each real estate (hereinafter “the instant dry field”). Nonparty 3 allowed Nonparty 1 to sell the dry field of this case to Nonparty 1 and sold the dry field of this case to KRW 232,350,000, around August 199.

B. In the case of the auction of real estate rent in the name of the defendant and his wife, the non-party 1 was awarded a successful bid of KRW 680,130,00 for the instant orchard in his joint name with the Jeju District Court Decision 98TAB, 16021, and paid the price, and the non-party 1 and the defendant completed the registration of ownership transfer on February 11, 200 each half of the share. The amount of KRW 450,00,000 out of the successful bid price is set up in the instant orchard and set up a mortgage on the instant orchard and appropriated the amount of money borrowed from the National Agricultural Cooperative Federation (hereinafter referred to as the "CF"), and then the defendant and the non-party 1 appropriated the amount of money borrowed from the National Agricultural Cooperative Federation (hereinafter referred to as the "CF") with the Jeju District Court No. 17571 on May 18, 201 as to the instant orchard.

C. However, Nonparty 1 did not transfer to Nonparty 3 the share in proportion to the purchase price of the instant dry field that Nonparty 3 shared by Nonparty 3 among the successful bid price of the instant orchard, Nonparty 3 filed a lawsuit against Nonparty 1 seeking transfer of ownership equivalent to the amount he assumed out of the successful bid price of the instant orchard. While Nonparty 1 dismissed Nonparty 3’s claim, the appellate court (Seoul High Court Jeju High Court Decision 2006Na1253) dismissed Nonparty 3’s claim, the appellate court (Seoul High Court Decision 2006Na806) decided that “Nonindicted 1 shall transfer ownership registration due to a transfer agreement made on June 20, 199 with Nonparty 3 with respect to the share in 232,350 out of 1/2 of the share in the instant orchard.” The judgment became final and conclusive by the Supreme Court.

D. According to the above judgment, on November 20, 207, Nonparty 3 completed the transfer registration of ownership on 680,130/130 of the shares of Nonparty 1-2 of the instant orchard on November 20, 2007, with respect to the shares of 232,350/130 of the shares of Nonparty 1-2 of the instant orchard, and transferred 1/3 of the shares of Nonparty 3 to each of the Plaintiffs who are his dependants on June 20, 199, and died. The Plaintiffs were transferred 1/3 of the shares of Nonparty 3 as indicated in the separate sheet of co-ownership on June 26, 2008.

E. After doing so, the Defendant asserted that it paid 450,000,000 won for the secured debt of the instant collateral (hereinafter “instant loan”) to Nonghyup, and applied for auction of the Plaintiffs’ share after receiving the transfer of the instant collateral security from Nonghyup.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3 and 5 evidence (including additional number), the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

1) The plaintiff's assertion

In fact, Nonparty 1 repaid the instant loan, and even if the Defendant paid the instant loan, it is reasonable to see that the Defendant was the de facto debtor of the instant loan with Nonparty 1 and the Defendant as the successful bid price of the instant orchard. As such, it is unreasonable for the Defendant, a de facto debtor, to exercise the right to indemnity against the Plaintiffs, who are merely a surety, to whom the instant loan was repaid, and therefore, as long as the instant loan was extinguished upon repayment, the Defendant is obliged to cancel the instant collateral security against the Plaintiffs.

2) The defendant's assertion

The debtor of the loan of this case is the non-party 1, and the defendant is merely the surety's surety. Since the defendant subrogated for the loan of this case for the non-party 1, the defendant has the right to claim the amount of subrogation against the plaintiffs

B. Determination

Before examining who is the actual debtor of the loan of this case, according to the facts acknowledged earlier, the interest of the plaintiffs, who were bequeathed by Nonparty 3, is acquired through the proceeds from the sale of the dry field of this case, and since the shares of the defendant and Nonparty 1 are acquired through the loan of this case, it is reasonable to deem that the defendant is the actual debtor of the loan of this case with Nonparty 1, and the defendant, who is the actual debtor of the loan of this case, is in the actual debtor of the loan of this case, shall exercise the right to indemnity against the plaintiffs. Therefore, as long as the loan of this case, which is the secured claim of this case, is extinguished, the defendant is obligated to perform the registration of cancellation of the mortgage of this case to the plaintiffs.

3. Conclusion

Therefore, the plaintiffs' claims are reasonable, and it is decided as per Disposition by admitting them.

[Attachment]

Judge Upper-gu