손해배상(기)
1. Revocation of a judgment of the first instance;
2. The plaintiff's claim shall be dismissed, including the part extended in the trial.
In accordance with the main sentence of Article 420 of the Civil Procedure Act, the part concerning "1. Basic Facts" among the grounds for the judgment of the first instance which partially accepts the judgment of the first instance.
The main point of the cause of the Plaintiff’s claim is that the Defendant is the Intervenor A’s Intervenor (hereinafter referred to as “ Intervenor”) under the Credit Guarantee Agreement.
By paying the principal and interest of the loan to the Intervenor, the Intervenor acquired a right to claim the registration of establishment of mortgage of the instant building against A.
Therefore, even though the plaintiff, a joint and several surety of A's indemnity obligation, requested several times to the defendant to exercise the right to claim the establishment of a mortgage on the instant building, the plaintiff was not paid the money that he would have received if the right to collateral security was established on the instant building, and thus, the defendant is liable to pay the relevant amount as damages for tort.
As such, when the Defendant did not exercise the right to claim the registration of establishment of a mortgage on the instant building, the Plaintiff is exempted from the liability to pay the amount of indemnity, as the third party did not set up the right to collateral security on the instant building by seizure or provisional seizure of the instant building.
Therefore, the defendant is obligated to return the pertinent amount out of the amount of indemnity paid to the plaintiff as unjust enrichment.
Since the legal principles related to judgment on damages arising from a tort belong to the area where a creditor who is entitled to freely choose his/her claim or security right, barring special circumstances where a creditor bears the duty to exercise his/her claim or security right against a third party in good faith, the creditor cannot be deemed as tort on the ground that he/she did not exercise or waive his/her claim or security right, and a person who has legitimate interest in subrogation loses or reduces the creditor's security.