1. Since the right to collateral security is established for the purpose of collateral security, in principle, the creditor and the mortgagee should be the same person. However, in the event that the right to collateral security is established with the third party as the holder of the right to collateral security, there is an agreement between the creditor, the debtor and the third party on this point, and in exceptional circumstances where it can be deemed that the claim was actually reverted to the third party by means of assignment of claims, a contract for the third party, an indivisible claim relationship, etc., the establishment registration of collateral security in the name of the third party may also be deemed valid (see, e.g., Supreme Court en banc Decision 9Da4894

In addition, even though it is not bound by the facts established in the judgment of other civil cases, etc. in civil trials, the facts established in the already established civil cases shall not be rejected without reasonable grounds (see, e.g., Supreme Court Decisions 92Da51372, Mar. 12, 1993; 94Da3302, Jan. 12, 1995; 94Da47292, Jun. 29, 195).

2. According to the reasoning of the lower judgment, the lower court: (a) borrowed a total of KRW 271 million after the Plaintiff borrowed KRW 15 million from F on August 19, 2009; (b) delegated E’s authority to establish a mortgage for securing obligations to EF regarding real estate owned by the Plaintiff; (c) obtained a loan from F on November 17, 2009 (hereinafter “the instant loan certificate”); and (d) stated the Plaintiff’s seal impression of KRW 30,696 (hereinafter “the instant real estate”); and (e) issued the instant loan certificate to the Plaintiff 10,000,000,000 won for KRW 10,000,000,000,000 won for KRW 30,000,000,000,000,000 won for KRW 10,000,000,000 for KRW 30,000,00,000; and (e) stated the Plaintiff 170,0,07.

Furthermore, the lower court determined that the registration of establishment of a collateral in the instant case was null and void, not only because the Plaintiff merely delegated E with the authority to establish a collateral security on the instant real estate for the purpose of securing the obligation to EF, there is no clear evidence to deem that the Plaintiff delegated E with the authority to establish a collateral security in order to secure all obligations to E or to secure the Defendant’s obligations to E, but also the above loan claims to F is a nominative claim. The mere fact that F issued the instant loan certificate to the Defendant is insufficient to deem that the agreement on the assignment of claims was established, and there is no evidence to support that F gave notice of the assignment of claims to E or gave consent to the assignment of claims.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

According to the reasoning of the judgment below and the evidence adopted by the court below, F was the fact that money lent by E was invested by the defendant, E was the public loan certificate (164 pages of the record), proxy (165 pages of the record) and promissory notes (166 pages of the record) owned by E were prepared by creditors to F at the time of borrowing, and F was demanded by the defendant to repay investment funds, and F was completed the establishment of the mortgage of this case under the name of the defendant after the receipt of the certificate of seal necessary for the establishment of the mortgage, certificate of personal seal, etc. from the plaintiff, G and E, and was in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the establishment of the mortgage of this case on the 30th anniversary of the registration of the establishment of the mortgage of this case on the real estate owned by the defendant, which was known that E was not aware of the source of the funds as at the time of borrowing, and that E was not subject to the establishment of the mortgage of this case's land under the name of G16.

In addition to these facts, at the time of borrowing the loan or the establishment of the right to collateral security, E only intended to raise the business fund through F, but not important as to who is the lessee, and the Plaintiff merely offered the instant real estate as collateral for the financing of E, and it is difficult to view that only F only the creditor was provided as collateral. In addition to the relevant case and the instant case, although the Plaintiff, the subject real estate and the establishment of the right to collateral security are different, the obligor and the Defendant are the same and the facts that form the basis of the dispute, such as the circumstances surrounding the creation of the right to collateral security, are the same, it can be deemed that F’s loan claims under the consent of the Plaintiff and E have been transferred to the Defendant

There is sufficient room to regard the registration of the establishment of a neighboring mortgage of this case as valid.

Nevertheless, the lower court determined that the establishment registration of the instant establishment was null and void solely on the grounds stated in its reasoning. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation in violation of logical and empirical rules, or by exceeding the bounds of the principle of free evaluation, or by exceeding

4. Conclusion

The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

Justices Kim In-young

Justices Lee Dong-won