(영문) 대전지방법원천안지원 2020.04.29 2019가단102693

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(영문) 대전지방법원천안지원 2020.04.29 2019가단102693

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. On March 20, 1996, the Defendant concluded a mortgage-based contract with C regarding each real estate listed in the separate sheet (hereinafter “instant real estate”) with C in order to secure the claim for the cost of goods, such as agricultural machinery, etc. against Nonparty C, with a debtor at KRW 70,00,000,000.

B. On April 9, 1997, the Plaintiff, a spouse of C, completed the registration of ownership transfer based on donation. On March 8, 2006, the Defendant concluded a contract to modify the right to collateral security with the Plaintiff, changing the maximum debt amount from KRW 70,000,000 to KRW 100,000,000, and accordingly completed the registration of change.

C. On January 1, 2018, the Defendant: (a) sold the agricultural machinery, apparatus, and parts produced by the Defendant to C; and (b) C concluded an agency contract with the content that sold to the end-user with the fact-finding area.

C died on September 19, 2018.

[Grounds for Recognition: Evidence No. 1-4 of No. 1-3-4 of the evidence No. 3-2 of the evidence No. 1 to No. 3-2 of the evidence No. 1-2, the purport of whole pleadings]

2. The Plaintiff’s assertion that C was hospitalized in the hospital and was unable to sell agricultural machinery on July 17, 2018 or on September 19, 2018, where C died, the secured obligation of the instant right to collateral security was finalized. However, the Defendant’s claim against the outstanding amount, which is the secured obligation of the instant right to collateral security, was all incurred after the secured obligation of the instant right to collateral security became final and conclusive, and thus, the secured obligation cannot be deemed to exist. Therefore, the establishment registration of the instant right to collateral security should be cancelled by the registration invalidation, and since the Plaintiff is a surety to secure the property liability only for the Plaintiff, the Defendant cannot claim against the Plaintiff the claim arising from the transaction that was conducted after C, the obligor, died.

3. Examination of the judgment, entry of Gap evidence 6-1 to 7, and evidence 7, and this Court.

유사 판례

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-대법원 2001. 11. 9. 선고 2001다47528 판결