[가압류이의][공1997.12.1.(47),3637]
[1] Whether only a mortgagee's creditor who made a provisional attachment or provisional disposition registration with respect to the real estate offered as security can be deemed to have lost or reduced security by his/her intention or negligence (negative)
[2] In a case where a creditor acquired a debtor's real estate as security in excess of the amount of a claim, but loses security and acquires only security falling short of the amount of a claim, the scope of a guarantor's exemption under Article 485 of the
[1] Article 485 of the Civil Code provides that, in cases where there is a person to be subrogated under Article 481 of the Civil Code, if a creditor has intentionally or negligently lost or diminished a security, the person to be subrogated shall be exempted from his liability to the extent that it cannot be repaid due to the loss or reduction of the security. Thus, even if the creditor of the mortgagee has made a registration of provisional attachment or provisional disposition with respect to the real estate provided as security, such fact alone shall not be deemed to have caused the mortgagee to lose or reduce the security intentionally or negligently.
[2] In a case where a creditor acquired a debtor's real estate more than the amount of the claim as a security, but loses the security for transfer than the amount of the claim and acquires only the security for transfer short of the amount of the claim, the scope of exempting the guarantor from liability pursuant to Article 485 of the Civil Code is not the total amount of the claim, but the amount calculated by deducting the amount equivalent to the value of the remaining security for transfer
[1] Article 485 of the Civil Code / [2] Article 485 of the Civil Code
[2] Supreme Court Decision 96Da35774 delivered on December 6, 1996 (Gong1997Sang, 199)
Creditors
Debtor (Law Firm Squa, Attorneys Seo Seo-woo et al., Counsel for the defendant-appellant)
Seoul District Court Decision 96Na27277 delivered on June 11, 1997
The appeal is dismissed. The costs of appeal are assessed against the debtor.
We examine the grounds of appeal.
1. On the first and second grounds for appeal
Article 485 of the Civil Act provides that, in cases where there is a person to be subrogated under Article 481 of the Civil Act, if the security is lost or diminished by the obligee's intentional act or negligence, the person to be subrogated shall be exempted from his liability to the extent that it cannot be repaid due to such loss or reduction. Thus, even if the creditor of the mortgagee has completed the registration of provisional attachment or provisional disposition with respect to the real estate offered as security, such fact alone cannot be deemed as having caused the mortgagee to lose or reduce the security by intention or negligence. Thus, the judgment of the court below to the same purport is just and there is no violation of law as discussed above. All of the arguments
2. On the third ground for appeal
In a case where a creditor acquires a debtor's real estate more than the amount of the claim as a security for transfer, but loses the security over such amount of claim and acquires only the security for transfer short of the amount of claim, the scope of exempting the guarantor from liability pursuant to Article 485 of the Civil Act shall be the amount calculated by subtracting the amount equivalent to the value of the remaining security for transfer from the total amount of claim, not from the total amount of claim, and thus, the judgment of the court below to the same purport is just and there is no error of law in the misapprehension of legal principles
3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Final Young-young (Presiding Justice)