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1. The defendant is the vice registry office of the Seoul Central District Court with respect to each real estate listed in the separate sheet to the non-party B (C).
Reasons
1. Basic facts
A. On November 1, 2016, the Plaintiff seized each real estate listed in the separate sheet owned by B (hereinafter “instant real estate”) in order to collect the delinquent amount of national taxes against B on November 11, 2016.
B. As to the instant real estate, the Defendant completed the registration of establishment of a mortgage (hereinafter “mortgage”) with respect to the instant real estate as the Seoul Central District Court’s mid-gu Branch Registry No. 37783, Jul. 25, 2000, establishing the contract, the maximum debt amount of KRW 150,000,000, and the debtor B, which are the debtor B (hereinafter “mortgage”).
C. B is a insolvent state in which a passive property (tax amount of KRW 176,878,90, and amount of KRW 150,000) as of January 17, 2017 exceeds active property (the total market value of the instant real estate is KRW 227,01,820).
[Ground of recognition] Facts without dispute, entry of Gap 1, 2, and 5 (including virtual numbers), the purport of the whole pleadings
2. As to the assertion, the Plaintiff asserts that the secured claim of the instant right to collateral security has not existed or expired by prescription.
The Defendant asserts that the instant real estate was donated to B and was paid the old age living cost in return, and that the instant mortgage was created to secure this.
A mortgage is a mortgage established by setting only the maximum amount of the debt to be secured and reserving the determination of the debt in the future (Article 357(1) of the Civil Act). Since a security right is established to secure a certain limit from a continuous settlement term for the future, there must be a legal act establishing a secured claim of the right to collateral separate from the act of establishing the right to collateral. The burden of proving the existence of a legal act establishing a secured claim of the right to collateral at the time the right to collateral was established.
(see, e.g., Supreme Court Decision 2009Da72070, Dec. 24, 2009). Defendant bears the instant real estate against B, contrary to its assertion.