(영문) 서울중앙지방법원 2012.04.10 2011가단398841

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(영문) 서울중앙지방법원 2012.04.10 2011가단398841

근저당권말소

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1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Facts of recognition;

A. As to the real estate indicated in the attached list owned by the Plaintiff (hereinafter “the instant real estate”), the Plaintiff and Nonparty C concluded a mortgage agreement with the maximum debt amount of KRW 100 million on September 1, 2008, the Plaintiff, the debtor, and the mortgagee C, and the Seoul Central District Court completed the registration of creation of a mortgage in the name of No. 41302, Sept. 3, 2008, under the title C of the Seoul Central District Court.

(hereinafter “the instant mortgage and the establishment registration of a mortgage”). B.

C On April 19, 2010, a contract to transfer the instant mortgage to the Defendant was concluded, and the registration of transfer of the establishment of a neighboring mortgage was completed in the name of the Defendant on the same day.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1, purport of whole pleadings

2. Determination as to the claim

A. The Plaintiff asserted that the Plaintiff exported the industrial products to Ghana from around 2007, but there was a need to purchase the goods in order to increase the volume of exports, and provided a security for the mobilization of funds.

Accordingly, the Plaintiff borrowed funds from C and completed the registration of establishment of a mortgage on the instant real estate as collateral, and the export did not proceed as planned due to the Ghana's local circumstances.

As such, the Plaintiff did not incur the debt to C, and thereafter, anticipated the possibility of re-export to A and the credit transaction to B, and only the registration of the establishment of the instant neighboring mortgage was made.

Nevertheless, as C transferred the instant collateral to the Defendant as if it had the secured obligation of the instant collateral, the instant collateral security without the secured obligation is null and void and thus ought to be cancelled.

B. Since the establishment registration of a mortgage of the instant neighboring area was completed, it is presumed that the said secured obligation exists. However, each evidence submitted by the Plaintiff alone is insufficient to acknowledge that there was no secured obligation of the establishment registration of a mortgage of the instant neighboring area, and there is no other evidence to acknowledge otherwise.

3. The plaintiff's conclusion is that of this case.

유사 판례

-서울중앙지방법원 2012.04.10 2011가단398841

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