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(영문) 대전고등법원 2017.02.03 2016나12630
근저당권설정등기말소 등
Text

1. Of judgment of the first instance, the part requesting cancellation of the registration of creation of a neighboring mortgage shall be amended as follows:

The defendant is against the plaintiff.

Reasons

1. The reasoning for the court’s explanation concerning this part of the underlying facts is as stated in the corresponding part of the reasoning of the judgment of the first instance, except for the dismissal or addition of the judgment of the first instance as follows. Therefore, they are cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

Each "this Court" in the 2nd, 18th, 3rd, and 9th, shall be deemed to be the "Support of the Daejeon District Court in the 2nd, 3rd, and 9th, respectively."

Part 3: The following shall be added to the third decision of the first instance:

【Deposit Number: 2,440,090 won (Deposit Number: No. 1158, 2016; hereinafter referred to as “the second deposit”) on May 27, 2016 by the Plaintiff having the Defendant as the principal deposit at the Daejeon District Court’s Support for Incheon District Court as the principal deposit.

(Deposit Number: 2,662,400 won (Deposit Number: No. 2575, 2016; hereinafter referred to as “third deposit”) on October 7, 2016

(2) On December 13, 2016, KRW 300,000 (Deposit Number: gold No. 3093, 2016; hereinafter referred to as “fourth deposit”)

3) Each additional deposit is made in accordance with Section 13 of the judgment of the first instance court, "A 1 to 7, and 10" in Section 1 to 7, 10, 20, 22, and 23.

2. The parties' assertion

A. The Plaintiff asserted four times of deposit to repay the full amount of the secured debt registered as the collateral security (hereinafter “instant collateral security”) set forth in the Disposition No. 1.

As a result, since all secured claims of the instant right to collateral security have ceased to exist, the establishment registration of the instant right to collateral security should be cancelled on the ground of repayment deposit on December 13, 2016, which was the fourth deposit date.

B. The Plaintiff and D agreed to jointly carry out the business of building and selling the entire house on each of the instant real property. The Plaintiff and the Defendant set the maximum debt amount of the instant right to collateral security at KRW 270 million with respect to the instant business was aimed at securing all the obligations of the Plaintiff and D related to the instant business.

Therefore, regarding the secured claim of the instant right to collateral security, ① KRW 169.5 million, directly lent to the Plaintiff by the Defendant, and ②.

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