(영문) 춘천지방법원원주지원 2016.11.22 2016가단5015 (1)

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(영문) 춘천지방법원원주지원 2016.11.22 2016가단5015 (1)

저당권말소등록절차이행 청구

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1. The plaintiff's claim is dismissed.

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

Reasons

1. Basic facts

A. On July 22, 2005, the Plaintiff filed a lawsuit against the Plaintiff for a loan claim and paid the Plaintiff KRW 70 million to the Plaintiff by December 31, 2005. When the Defendant (C) delays the payment of the above amount, a voluntary adjustment (Evidence A) was concluded to the effect that “The Plaintiff shall pay the unpaid amount plus damages for delay calculated at the rate of 20% per annum from January 1, 2006 to the date of full payment.”

B. As to the motor vehicles listed in the separate sheet owned by C (hereinafter “instant motor vehicle”), the registration of mortgage creation was completed on August 1, 2016, No. 4218-201608-0086 on August 1, 2016, which became the mortgagee’s defendant.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 3, the purport of the whole pleadings

2. The parties' assertion

A. Although the Plaintiff’s assertion C did not bear obligations against the Defendant, it in collusion with the Defendant for the purpose of evading obligations against the Plaintiff, and completed the establishment of mortgage on the instant automobile in the name of the Defendant.

Therefore, the defendant has a duty to implement C the registration procedure for cancellation of mortgage creation which has been completed for the automobile of this case.

The plaintiff as a creditor against C shall exercise the right to claim the cancellation of the procedure for the registration of mortgage creation against C as a creditor.

B. The defendant's assertion was established as a collateral for the monetary claim against C, and the plaintiff's argument is not reasonable.

3. Where a declaration of intention of a judgment is deemed invalid as a false declaration of intention of a conspiracy, the burden of proving the false declaration of intention is the claimant.

However, the evidence submitted by the plaintiff alone is insufficient to recognize that C and the defendant in collusion registered the creation of false mortgage.

Rather, in full view of the contents of the evidence Nos. 5 and 6, the defendant is the defendant.

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