Open Decision Ledger · Civil procedure & enforcement
Burden of proving the secured claim and a donee's participation in breach
Supreme Court, Sept. 4, 2025, 2024Da306721 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 근저당권말소
Official text on the National Law Information Center
Question
Where the secured claim of a mortgage is said never to have arisen, must the party asserting that the act creating it existed prove it, and what active participation by a donee third party in the nominee's breach of trust makes the disposition violate social order?
Holding
The party asserting that the act creating the secured claim existed must prove it, and if that proof is insufficient the mortgage registration is void and must be cancelled; that the registration was made does not shift that burden to the party seeking cancellation. Where a third party takes trust property from the nominee as a gift, the degree of active participation in the nominee's breach required for a violation of social order differs by the relationship and by whether the disposition is gratuitous or for value. The court below misapprehended both rules and failed to examine what it needed to, so the error affected its judgment.
Points at issue, verbatim
근저당권의 성립 당시 근저당권의 피담보채권을 성립시키는 법률행위가 없었다는 주장이 있는 경우, 그러한 법률행위가 있었다는 점에 대한 증명책임의 소재
Unofficial English translation
Where there is an assertion that, at the time the maximum amount mortgage was created, there was no juristic act giving rise to the secured claim of the maximum amount mortgage, the allocation of the burden of proof as to the fact that such a juristic act existed
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 서울중앙지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court.
Form of the test
Elements stated Stated in the decision
‘제3자가 명의수탁자의 자녀이고 처분행위가 증여 기타 무상행위인 경우’와 ‘제3자가 명의수탁자와 아무런 이해관계가 없는 사람이고 처분행위 또한 매매 기타 유상행위인 경우’ 사이에 사회질서위반이 되기 위하여 요구되는 적극 가담의 정도는 다르다고 보아야 한다
Unofficial English translation
The degree of affirmative participation required for an act to constitute a violation of good morals must be regarded as differing between the case where 'the third party is a child of the title trustee and the act of disposition is a gift or other gratuitous act' and the case where 'the third party is a person having no interest whatsoever in the title trustee and the act of disposition is a sale or other onerous act'
Factors
- 근저당권의 피담보채권이 존재하지 않는다는 것이 확정된 경우, 근저당권 설정등기를 말소하여야 하는지 여부(적극)
- 근저당권의 성립 당시 근저당권의 피담보채권을 성립시키는 법률행위가 없었다는 주장이 있는 경우, 그러한 법률행위가 있었다는 점에 대한 증명책임의 소재
- 명의수탁자로부터 신탁재산을 증여받은 제3자가 명의수탁자의 명의신탁자에 대한 배임행위에 적극 가담하였는지 여부를 판단할 때 고려할 요소
Unofficial English translation
• Whether the registration of a maximum amount mortgage must be cancelled where it has become final that no secured claim of the maximum amount mortgage exists (affirmative)
• Where there is an assertion that, at the time the maximum amount mortgage was created, there was no juristic act giving rise to the secured claim of the maximum amount mortgage, the allocation of the burden of proof as to the fact that such a juristic act existed
• Factors to be considered in determining whether a third party who received a gift of trust property from the title trustee affirmatively participated in the title trustee's act of breach of trust against the trustor of the title trust
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2011. 4. 28. 선고 2010다107408 판결, 대법원 2017. 9. 12. 선고 2015다225011 판결 등 참조
Unofficial English translation
See Supreme Court Decision 2010Da107408 decided April 28, 2011, Supreme Court Decision 2015Da225011 decided September 12, 2017, etc.
Decisions referred to
[1] 대법원 2011. 4. 28. 선고 2010다107408 판결, 대법원 2017. 9. 12. 선고 2015다225011 판결 / [2] 대법원 2015. 1. 15. 선고 2014다62831 판결
Burden of proof
The party asserting Stated in the decision
근저당권 성립 당시 근저당권의 피담보채권을 성립시키는 법률행위가 없었다는 주장이 있는 경우 그러한 법률행위가 있었다는 점에 대한 증명책임은 그 존재를 주장하는 측에 있다
Unofficial English translation
Where there is an assertion that, at the time the maximum amount mortgage was created, there was no juristic act giving rise to the secured claim of the maximum amount mortgage, the burden of proof as to the fact that such a juristic act existed lies with the party asserting its existence
Open question and revisit condition
Where the donee is the nominee's child but takes for value, or takes a gift without being the nominee's child, what degree of active participation is required?
The remand judgment of the Seoul Central District Court on the circumstances of the gift and on the burden of proof would require this entry to be read again, as would a later decision changing the rules under Article 357(1) of the Civil Act or the standard on active participation set out in Supreme Court Decision 2014Da62831.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-24
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 2 (holding), axis 8 (open question and revisit condition).
Axis 2 (Holding): Primary “The party asserting that the act creating the secured claim existed must prove it, and if that proof is insufficient the mortgage registration is void and must be cancelled; that the registration was made does not shift that burden to the party seeking cancellation. Where a third party takes trust property from the nominee as a gift, the degree of active participation in the nominee's breach required for a violation of social order differs by the relationship and by whether the disposition is gratuitous or for value. The court below misapprehended both rules and failed to examine what it needed to, so the error affected its judgment.” vs Independent “The party asserting the transaction must prove its existence, and the mortgage registration must be cancelled if the secured claim is established not to exist. The degree of participation required differs between a gratuitous transfer to the trustee's child and an onerous transfer to an unrelated person; the circumstances here warranted closer examination of the daughter's participation.”
Although both allocate proof to the party asserting the transaction and distinguish degrees of participation, the primary reading makes insufficient proof a ground for cancellation, while the independent reading specifies established nonexistence of the secured claim.
근저당권의 성립 당시 근저당권의 피담보채권을 성립시키는 법률행위가 없었다는 주장이 있는 경우, 그러한 법률행위가 있었다는 점에 대한 증명책임의 소재Axis 8 (Open question and revisit condition): Primary “Where the donee is the nominee's child but takes for value, or takes a gift without being the nominee's child, what degree of active participation is required?” vs Independent “Will further examination establish the secured transactions and the daughter's active participation in the trustee's breach of trust?”
The primary reading asks about participation thresholds in other combinations of kinship and consideration, while the independent reading asks what further examination will establish in this case.
근저당권의 성립 당시 근저당권의 피담보채권을 성립시키는 법률행위가 없었다는 주장이 있는 경우, 그러한 법률행위가 있었다는 점에 대한 증명책임의 소재Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul Central District Court, in its judgment of 24 October 2024 (2023Na42630), held that the share ownership registration in the name of Non-party 2 was a three-party nominee trust and therefore void, but that on the plaintiffs' evidence alone it could not be found that the defendant and the designees had actively participated in Non-party 2's breach, or that no act creating the secured claim existed. It accordingly treated them as 'third parties' under Article 4(3) of the Act on Real-name Registration of Real Rights Holders and dismissed the claims for cancellation.
Supreme Court standard: The Supreme Court held that the burden for the act creating the secured claim lay with the defendant, so the mortgage registrations had to be cancelled if that proof was insufficient. It also held that the circumstances of the gift to Designee 3, the nominee's daughter, had not been closely examined, and that it was likely she had actively participated in the breach. It reversed the whole judgment, omitted the remaining grounds, and remanded to the Seoul Central District Court on the unanimous opinion of the participating Justices.
Distinguishing conditions
- A mortgage for which the party asserting the secured claim proves the act that created it, so that non-existence is not established.
- A disposition of trust property to a third party who has no interest with the nominee and takes for value, since the degree of active participation required differs from the case of a nominee's child taking a gift.
- A case where no one asserts that the act creating the secured claim was missing at the mortgage's creation.
Record verification notes
List the act each mortgagee offers as creating its secured claim, with its date, because the burden falls on that side. Set the gift to Designee 3 against the record: the dispute over residual assets among the investors, the lack of a plausible explanation for it, and the registrations made to the defendant, of which the nominee was an inside director, and to the nominee's spouse at close times.
From the official text
Points at issue
[1] 근저당권의 피담보채권이 존재하지 않는다는 것이 확정된 경우, 근저당권 설정등기를 말소하여야 하는지 여부(적극) 및 근저당권의 성립 당시 근저당권의 피담보채권을 성립시키는 법률행위가 없었다는 주장이 있는 경우, 그러한 법률행위가 있었다는 점에 대한 증명책임의 소재(=법률행위의 존재를 주장하는 측) [2] 명의수탁자로부터 신탁재산을 증여받은 제3자가 명의수탁자의 명의신탁자에 대한 배임행위에 적극 가담하였는지 여부를 판단할 때 고려할 요소
Unofficial English translation
[1] Whether the registration of a maximum amount mortgage must be cancelled where it has become final that no secured claim of the maximum amount mortgage exists (affirmative), and, where there is an assertion that, at the time the maximum amount mortgage was created, there was no juristic act giving rise to the secured claim of the maximum amount mortgage, the allocation of the burden of proof as to the fact that such a juristic act existed (= the party asserting the existence of the juristic act) [2] Factors to be considered in determining whether a third party who received a gift of trust property from the title trustee affirmatively participated in the title trustee's act of breach of trust against the trustor of the title trust
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 서울중앙지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court.
Provisions referred to
[1] 민법 제357조 제1항, 민사소송법 제288조[증명책임] / [2] 민법 제103조
Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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