[2] Whether a creditor bears the duty to faithfully exercise his/her claim or security right against a third party (negative)

[2] The issue of whether an obligee exercises his/her claim or security right belongs to the area in which the obligee can freely choose, and barring special circumstances under which an obligee bears the obligation to exercise his/her claim or security right in good faith against a third party, the obligee cannot be deemed to constitute tort on the ground that the obligee did not exercise or waive his/her claim or security right, and even though a person who has legitimate interest in subrogation can assert the exemption from liability under Article 485 of the Civil Act by reason of the obligee’s loss or decrease in the obligee’s security, the obligee cannot be deemed to bear the obligation to exercise his/her claim or security right in good faith solely on the ground that a person who has legitimate interest in subrogation

1. The facts duly established by the court below after compiling the adopted evidence are as follows.

A. On July 19, 195, the Plaintiff made a registration of creation of a mortgage (hereinafter referred to as the "mortgage 1 mortgage") in the name of the Defendant with a maximum debt amount of KRW 65 million in respect of Guro-gu Seoul ( Address 1 omitted) and ○○ apartment on the ground ( Address 2 omitted) on July 19, 1995 (hereinafter referred to as "real estate 1 omitted"), which is owned by the Plaintiff, for the purpose of securing the obligation to the Defendant of Seongdong-gu Co., Ltd. (hereinafter referred to as "non-party company").

B. On the same day, Nonparty 1, who was the representative director of the non-party company, made a registration of creation of a neighboring mortgage under the name of the defendant (hereinafter referred to as the "second collateral mortgage") with respect to the same apartment (Dong, lake 2 omitted) owned by the non-party company (hereinafter referred to as "second class real estate") with a maximum debt amount of KRW 65 million in order to secure the debt against the defendant of the non-party company.

C. At the time, the market value of the first and second real estate was KRW 120 million, respectively.

D. As to the second immovable property, priority was over the second collateral in the name of the Defendant, and the collateral security was established, which was the cause of the maximum debt amount of KRW 75 million in the name of the Sinan Mutual Saving and Finance Company, and the maximum debt amount of KRW 14 million in the name of the Korean Barun Company.

E. Upon receipt of a request from the non-party company to cancel the second collateral mortgage, the defendant made on May 13, 1996 that the non-party company pay interest of KRW 1,197,575 on loans from the non-party company and KRW 3,750,000 to the non-party company's accumulated trust deposit account for which the right of pledge is established under the name of the defendant, and on May 28, 1996, the non-party company's debt is not more than KRW 71 million, and the non-party company's debt is not more than KRW 75,00,000,000,000,000 won for the first collateral collateral and KRW 13,000,000,000,000 won for the above accumulated trust loan, and the collateral ratio was equivalent to KRW 109,000,000 for the reason that the cancellation of the second collateral mortgage does not interfere with the preservation of the claim.

F. On May 31, 1996, after the cancellation of the second collateral mortgage, Nonparty 1 completed the registration of ownership transfer for the second real estate with respect to Nonparty 2 on the grounds of sale, and on July 25, 1996, all of the registration of ownership transfer for the second real estate was cancelled.

G. Meanwhile, upon the Defendant’s application, when the voluntary auction procedure on the first real estate was initiated on April 22, 1997, the Plaintiff repaid KRW 58,782,505 in total to the Defendant on behalf of Nonparty Company in order to prevent the auction of the first real estate.

2. First, we examine the defendant's grounds for appeal.

A. The lower court, based on the premise that the standard time to determine whether to grant exemption or the amount of exemption pursuant to Article 485 of the Civil Act is objectively deemed as the standard time when the security right was exercised or could have been exercised, and determined as the standard time to determine whether to grant exemption and the amount of exemption on April 22, 1997 when the decision to commence voluntary auction was rendered with respect to the real estate 1. Based on the foregoing determination, the lower court determined that the Defendant’s second priority mortgage on the real estate 2 was exempted to the extent that it could not be repaid due to the loss or reduction of the security, on April 28, 1996, as the first priority mortgage on the real estate 2 was cancelled at the time of April 22, 197, the lower court determined as follows.

B. However, we cannot agree with the above judgment of the court below.

The issue of whether the Defendant’s cancellation of the second collateral security corresponds to “when the security has been lost or diminished” as stipulated in Article 485 of the Civil Act shall be determined at the standard point of time by the Defendant’s cancellation of the second collateral security. It is not necessary to consider the circumstances in which the first collateral security was cancelled due to the circumstances unrelated to the Defendant’s cancellation of the second collateral security.

According to the facts duly established by the court below, at the time of May 28, 1996, the market price of the second real estate was 120 million won as of May 28, 1996, when the defendant cancelled the second collateral mortgage concerning the second real estate. On the other hand, the second collateral mortgage in the name of the Gyeongan Mutual Saving and Finance Company, the maximum debt amount of 75 million won in the name of the Gyeongan Mutual Saving and Finance Company, and the second collateral mortgage in the name of the defendant was established prior to the priority of the maximum debt amount of 14 million won in the name of the Gyeongan Mutual Finance and Finance Company, and thus the second collateral mortgage in the name of the defendant was established. In such a situation, if the defendant extended the scope of the second collateral collateral security by receiving additional deposits from the trust deposit account of the non-party company with which the right of pledge was established instead of cancelling the second collateral mortgage without secured value, such choice of the defendant is reasonable

Nevertheless, the court below held that the Defendant’s cancellation of the second collateral security corresponds to “when the security has been lost or diminished” as stipulated in Article 485 of the Civil Act and recognized the Plaintiff’s exemption. Thus, the court below erred by misapprehending the legal principles under Article 485 of the Civil Act, which affected the conclusion of the judgment.

3. Next, we examine the Plaintiff’s grounds of appeal.

A. On July 21, 1995, the Plaintiff asserted that the secured debt of the first collateral mortgage is limited to the debt that the non-party company borrowed from the Defendant, but the court below recognized the secured debt of the first collateral mortgage as all the debt of the non-party company with respect to bills loans, bill discount, deed loan, party loan, and other credit transactions that the non-party company owes to the Defendant at the time and in the future. Upon comparing the reasoning of the judgment below with the records, the court below's fact-finding is just and there is no violation of the rules of evidence. Therefore, the Plaintiff's ground of appeal No. 1 is without merit.

B. The Plaintiff asserted that the Defendant infringed the Plaintiff’s statutory subrogation right in collusion with Nonparty 1, etc., by cancelling the second collateral mortgage on the second real estate and neglecting to secure claims against the Nonparty Company.

The issue of whether an obligee exercises his/her claim or security right belongs to the area in which an obligee can freely choose. Thus, barring special circumstances where an obligee bears the obligation to exercise his/her claim or security right against a third party in good faith, the obligee cannot be deemed to constitute a tort on the ground that the obligee did not exercise or waive his/her claim or security right, barring special circumstances where the obligee bears the obligation to exercise his/her claim or security right against the third party. Furthermore, the obligee cannot be deemed to bear the obligation to exercise his/her claim or security right in good faith solely on the ground that a person who has a legitimate interest in subrogation can assert immunity pursuant to Article 485 of the Civil Act due to the act of loss or decrease of the obligee’s security. Thus, in this case where the Plaintiff did not have any assertion as to the reason why the Defendant bears the obligation to exercise his/her claim or security right against the non-party company in good faith, the obligee’s claim on the premise that the Defendant’s negligence in exercising his/her claim and security right against the non-party company constitutes a tort

Therefore, the decision of the court below that dismissed the plaintiff's claim for damages is just and it cannot be deemed that there is an error of law such as violation of the rules of evidence, omission of judgment, etc., and therefore, the plaintiff's ground

C. The plaintiff alleged in the ground of appeal No. 4 that the legal interest rate under Article 3 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings is unlawful on the premise that it is not reasonable for the defendant to resist the existence or scope of the obligation after the date following the date of the decision of the court of first instance. However, as seen above, the plaintiff's ground of appeal No. 4 cannot be accepted since it is reasonable for the court below to resist the existence or scope of the obligation.

4. Therefore, without examining the Defendant’s remaining grounds of appeal, the part against the Defendant is reversed, and that part of the case is remanded to the lower court for a new trial and determination. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)