2. B

2. D;

3. E.

According to the reasoning of the judgment below, the court below found the following facts and circumstances after compiling the adopted evidence and comprehensively taking into account the facts and circumstances as stated in its reasoning. In order to utilize the part corresponding to excess compensation among the value of each house of this case, the defendant and the plaintiffs agreed to allow the non-party company to complete the registration of establishment of a mortgage on each house of this case to a person designated by the non-party company. After that, the non-party company borrowed funds from the defendants and agreed to complete the registration of establishment of a mortgage on each house of this case which can be used as security pursuant to the above agreement with the defendants, and eventually, the plaintiffs and the non-party company and the non-party company provided the defendants with a seal impression for the registration of establishment of a mortgage and the certificate of personal seal for the establishment of a mortgage agreement between the plaintiffs and the defendants, and completed the registration of each house of this case. Thus, the court below determined that the plaintiffs and the defendants were valid, regardless of whether the plaintiffs knew of the specific loan to the non-party company of this case, and thus, the defendant's debt of this case was established as a security obligation of this case.

However, it is difficult to accept the judgment of the court below that the secured debt of the establishment registration of each of the preceding units of the instant case is the non-party company's obligation to return borrowed money to the Defendants, and that an implied agreement was reached between the Plaintiffs and the Defendants.

The record reveals the following circumstances.

① In the sales contract for each of the instant housing between the Plaintiffs and the Nonparty Company, even after the Plaintiffs paid the purchase price in full to the Nonparty Company and the completion of the registration of ownership transfer, the remaining bonds and obligations after the Plaintiffs paid in full to the Nonparty Company did not appear to have any different provision from the Plaintiffs’ obligation to pay excess compensation to the Nonparty Company. Accordingly, even if there was no specific provision on the sales contract, etc., there is no room for doubt as to whether the Plaintiffs’ obligation to pay excess compensation to the Nonparty Company, which is established according to the sales contract

② At the time of each of the instant sales contracts, the non-party company did not have known or explained to the Plaintiffs that the non-party company would borrow funds from a third party for the performance of the business of the non-party company, or that it would establish the right to collateral security by setting the debt therefrom as the secured debt. Therefore, it was not possible for the Plaintiffs to recognize or anticipate that the secured debt of the right to collateral security established may be a separate pecuniary obligation owed by the non-party company, not for the non-party company’s obligation to pay excess compensation to the non-party company. Rather, the non-party company merely explained to the Plaintiffs that it

③ In order to establish each of the instant mortgages, it was true that the Plaintiffs issued a certificate of personal seal impression to the non-party company and affixed a seal impression on the contract to establish a collateral security and the power of delegation with the Defendants. However, at the time, the non-party company did not have known that the Plaintiffs bear the obligation to pay the borrowed money due to monetary transactions between the Defendants, or that the mortgage was established with the obligation to pay the borrowed money. Therefore, even if the Defendants stated in the contract to establish a collateral security, and accordingly, the registration of establishment of each of the instant collateral security interests was completed by the non-party company designated by the seller as the Defendants, in order to secure the excess compensation obligation, it seems that the Plaintiffs did not recognize or have not anticipated that the mortgage was established for the purpose of securing the separate obligation to pay borrowed money that the non-party company owes to the Defendants.

④ Although the maximum maximum debt amount of each of the instant mortgages was set equal to the amount of loans owed by the Defendants against the non-party company, it cannot be said that the Plaintiffs did not have any special interest because, in the event that the urban planning was actually implemented without being notified of the financial transaction relationship between the non-party company and the Defendants, the Plaintiffs did not have any dispute over the amount of excess compensation to be paid to the non-party company. Accordingly, it cannot be deemed that the circumstances indicate that the secured debt of each of the instant mortgages is the obligation to pay the borrowed money owed by the non-party company to the Defendants.

6. Since the amount of the Plaintiffs’ excess compensation obligation against the Nonparty Company is within the scope of the maximum debt amount of each of the instant mortgage claims, it cannot be ruled out that there was a small possibility rather than the amount of the obligation to return the loan to the Defendants by the Nonparty Company. In such a case, deeming that the Plaintiffs had implied intent to guarantee the obligation to pay the loan to the Defendants by the Nonparty Company, which is not the obligation to pay the excess compensation owed by the Plaintiffs to the Defendants, is difficult in light of the empirical rule.

In full view of the above circumstances, it cannot be deemed that the original and the Defendant did not have any intent to designate the secured debt secured by each of the instant collateral as the repayment obligation to the Defendants of the non-party company. Rather, it is reasonable to view that each of the instant collateral security obligations is the obligation to pay excess compensation to the non-party company. Nevertheless, the lower court determined that the secured debt of each of the instant collective security interests is the obligation to return borrowed money to the non-party company, not the obligation to pay excess compensation to the non-party company, and that there was an intention among the original and the Defendant. Based on its reasoning, the lower court asserted that the secured debt of the instant collective security interests is the obligation to pay excess compensation, and dismissed the claim of this case seeking the cancellation of each of the instant collateral security interests on the ground that the secured debt of this case is the obligation to pay excess compensation, and thus, dismissed the claim of this case. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Sang-hoon

Justices Cho Jong-hee

Chief Justice Park Sang-ok