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1. The contract to establish a mortgage between the Defendant and B on October 27, 2010 regarding each of the real estates listed in the separate sheet.
Reasons
1. Facts recognized;
A. On November 2, 2007, the Plaintiff lent KRW 400 million to B, and was set up a collateral security right as to the land C, D, and E (hereinafter “instant secured real estate”) owned by B as collateral, with the maximum debt amount of KRW 520 million.
B. Meanwhile, around October 27, 2010, B concluded a mortgage agreement with the Defendant on the basis of the maximum debt amount of KRW 280 million (hereinafter “instant mortgage agreement”) with respect to each of the real estates listed in the separate sheet (hereinafter “each of the instant real estates”) with the Defendant on the same day, while exceeding the debt, and completed the establishment registration of a mortgage to the Defendant on the same day.
C. The Plaintiff failed to pay interest on the instant secured real estate from December 27, 2009, and filed an application for the auction of real estate rent with the Seosan Branch of the Daejeon District Court for the instant secured real estate in arrears. Accordingly, on September 15, 2010, the auction procedure was commenced around September 15, 2010, and the appraisal price of the instant secured real estate was KRW 184,890,000 in the said auction case.
[Reasons for Recognition] Facts without dispute, Gap evidence 2-1 to 5, 3, 4-1 to 3, 5-1, 2, 6 through 13, and the purport of the whole pleadings
2. Determination
A. According to the facts of the determination as to the cause of the claim, since B created a mortgage on the instant real estate in excess of the obligation and deepened the status of the obligation, barring any special circumstance, the instant mortgage contract constitutes a fraudulent act, barring any special circumstance, and B knew that due to the instant mortgage contract, the joint security of the claim was insufficient, or that the joint security in the situation of the shortage was less than one story, and the Defendant’s bad faith, a beneficiary, is presumed.
Therefore, barring any special circumstance, the mortgage contract of this case shall be cancelled as a fraudulent act, and the defendant shall restore the original state to the original state pursuant to the mortgage contract of this case.