The burden of proving whether there has been a juristic act establishing the secured claim or not.

The mortgage is a mortgage created by setting only the maximum amount of the debt to be secured and reserving the determination of the obligation in the future, and there is a separate legal act establishing the secured claim of the right to collateral, and the burden of proving whether there was a legal act establishing the secured claim of the right to collateral at the time the right to collateral is established.

2012 Gohap70279 Demurrer against distribution

IsaA

Korea

August 30, 2012

September 20, 2012

1. The claim of this case is dismissed.

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

On February 23, 2012, with respect to the real estate auction procedure case, the District Court 201 another District Court 11835, deleted the amount of dividends to the defendant among the distribution schedule prepared by the above court, and corrected the amount of dividends to the plaintiff as KRW 000.

1. Basic facts

A. On April 1, 200, BB industry Co., Ltd. (hereinafter referred to as “B industry”) took over both the construction work of a water source O district apartment and the construction work under a subcontract from the EE Construction Co., Ltd. (hereinafter referred to as “CC Construction”) and the construction work of a water source O district apartment under a subcontract from the OE Construction Co., Ltd. (hereinafter referred to as “CC Construction”).

나. CC건설 대표이사이던 김FF은 2000. 5. 4. BB산업의 대표이사이던 이GG의 동생인 원고에게 000원에 대한 지불각서를 작성하고， 같은 날 자신의 소유인 남양주시 OO읍 OO리 000 하천 1，220㎡， 같은 리 000 하천 860㎡에 관하여 채권최고액 000원， 근저당권자 원고로 하는 근저당권(이하 '이 사건 근저당권'이라고 한다)설정등기를 마쳐주었다.

C. On the other hand, on June 24, 2000, the defendant's letter of business on the ground that it was a disposition agency, and as to each of the above real estate.

The registration of seizure is completed.

D. The Plaintiff applied for a voluntary auction on the basis of the instant collateral security, and on April 4, 201, the Republic of Korea Office

The auction procedure of each of the above real estates was initiated at the 2011 Dokwon, 11835.

E. On the date of distribution implemented on February 23, 2012, the executing court distributed 000 won to the Defendant, who is the seizure authority, among the amount to be distributed actually on the date of distribution, and distributed 00 won to the Plaintiff.

F. On February 29, 2012, the Plaintiff appeared on the aforementioned date of distribution, raised an objection to the full amount of the Defendant’s dividend, and filed the instant lawsuit on February 29, 2012.

[Grounds for Recognition] The non-contentious facts, significant facts in this Court, Gap evidence 1 to 7, and Eul evidence 2, and the purport of the whole pleadings

2. Determination

A mortgage is a mortgage created by setting the maximum amount of a debt to be secured, and reserving the determination of a debt in the future, and is established with a view to securing a certain limit at the end of the settlement term for the future, so the burden of proving whether there was a legal act establishing a secured claim of the right to collateral separately from the act of establishing the right to collateral, and whether there was a legal act establishing a secured claim of the right to collateral at the time of the establishment of the right to collateral (Supreme Court Decision 2009Do288, Dec. 24, 2009).

209Da72070). As to whether the secured claim of the instant right to collateral exists, the Plaintiff’s assertion that the BB industry created the instant right to collateral, but there is no evidence to acknowledge it, in the sense that, upon taking over the instant construction fromCC Construction to pay the total wage of KRW 000 to the on-site personnel, KimF would be individually responsible for it. Therefore, the instant right to collateral security cannot be deemed null and void because it cannot be deemed that there exists a legal act establishing the secured claim, and the Plaintiff’s assertion that the Plaintiff, as a creditor of KimF, was entitled to receive dividends in the above auction procedure is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.