1. The Defendant: (a) on July 25, 2002, issued registration office of the Daejeon District Court with respect to the land size of 3911.8 square meters in Chungcheongnam-gun, Chungcheongnam-gun, Chungcheongnam-do.

1. Facts of recognition;

A. D on April 2001, 391 m201, 3911.8 m2, Chungcheongnam-gun, Chungcheongnam-gun (hereinafter “instant land”) purchased and completed the registration of ownership transfer.

B. D married with E on July 25, 2002, but the agreement was reached on the same day. On the same day, D completed the registration of creation of a mortgage over the maximum debt amount of KRW 30 million to the Defendant (hereinafter “the registration of creation of a mortgage over the instant land”) with respect to the instant land, which was the subject of the said registration, with respect to the Defendant. The right to collateral security upon the registration of the establishment of a mortgage over the instant land was completed.

C. D Deceased on October 24, 2004, and the Plaintiff and F, who are children of D and E, completed the registration of ownership transfer on September 21, 2017 as to each of the instant land, based on inheritance.

[Ground of recognition] Facts without dispute, Gap evidence 1 and 2-1, purport of the whole pleadings

2. Determination on the cause of the claim

A. Since the secured claim of the instant right to collateral security does not exist from the beginning or its prescription expires, the Plaintiff sought the cancellation of the registration of creation of mortgage of the instant case against the Defendant as an act of preserving the ownership of the instant land by virtue of the ownership.

B. The judgment of the court below is a mortgage which establishes only the maximum amount of the debt to be secured and reserving the determination of the debt in the future. Since it is established for the purpose of securing a certain limit in a settlement term for the future several unspecified claims arising from the continuous business relationship, there must be a legal act establishing the secured claim of the right to collateral separately from the act of establishing the right to collateral, and the burden of proof as to whether there was a legal act establishing the secured claim of the right to collateral at the time of the establishment of the right

(see, e.g., Supreme Court Decision 2009Da72070, Dec. 24, 2009). The burden of proving the occurrence of the secured claim of the instant right to collateral security is asserted.