[2] In a case where a person who has pledged his/her property to secure another's property, which is the object of a joint mortgage, conducts an auction first, and the person who has pledged his/her property to secure another's property, acquires by subrogation the mortgage on the property owned by the debtor, whether the person who has pledged his/her property can claim the acquisition of the mortgage by subrogation (negative

[2] In a case where an auction is conducted first on the real estate owned by a person who has pledged another's property and another's property owned by the person who has pledged another's property among those owned by the person who has pledged another's property, and the person who has pledged another's property has been repaid by the payment of the auction proceeds, the person who has pledged another's property acquired the mortgage by subrogation as stipulated in Articles 481 and 482 of the Civil Code, and this does not require registration with the acquisition of the real right under the provisions of the law. Therefore, the person who has pledged another's property owned by the person who has pledged another's property or the person

2. Defendant 3 Co., Ltd. expressed his/her consent on the registration of recovery of the establishment of the above mortgage to Defendant 2 Co., Ltd.

3. Defendant 2 Co., Ltd. shall implement the registration procedure for the transfer of collateral security within the scope of KRW 24,000,000 with respect to the registration of the establishment of collateral security against Nonparty 1.

4. The costs of lawsuit shall be borne by the Defendants.

A. On August 1, 2003, when Defendant 1, Nonparty 1, 2, and 3 shared 1/4 shares of each of the real estate listed in the separate sheet (hereinafter “instant real estate”), Defendant 2 Co., Ltd. registered the establishment of a mortgage with all of Defendant 1, Nonparty 1, and Nonparty 1, 2, and 3’s shares as joint collateral and with the joint collateral worth KRW 195 million out of the instant real estate as of August 1, 2003.

B. On April 8, 2005, Defendant 2 Co., Ltd. received the second order of the establishment registration of a neighboring mortgage with all of Defendant 1 and Nonparty 1, 2, and 3’s 1/4 shares as joint collateral. On November 15, 2005, the Plaintiff completed the establishment registration of a neighboring mortgage with the debtor Nonparty 3 and the maximum debt amount of KRW 39 million. On November 15, 2005, the Plaintiff received the third order of the establishment registration of a neighboring mortgage with respect to Nonparty 1’s 1/4 shares out of the instant real estate as to the debtor Nonparty 1 and the maximum debt amount of KRW 24 million.

C. On November 21, 2007, Busan District Court Decision 2007Ma51535, the Plaintiff applied for an auction for the enforcement of the right to collateral security (hereinafter “the right to collateral security”) against Nonparty 1’s share among the instant real estate, and sold on June 10, 2008. The auction procedure commenced on November 21, 2007, and the sale was conducted on June 10, 2008. The sales price was distributed to Defendant 2, a first priority mortgagee, who was the right to collateral security (hereinafter “the right to collateral security”). The Plaintiff did not receive any distribution at all, and on July 3, 2008, the Plaintiff’s right to collateral security (hereinafter “the right to collateral security”) on Nonparty 1’s share (1/4 share) among the instant real estate was cancelled due to the sale due to the voluntary auction on June 1

D. Defendant 2 Co., Ltd.: (a) repaid the remainder of the secured debt from Defendant 1, the debtor of the first secured mortgage regarding the instant real estate; and (b) rescinded each of the secured debt from Nonparty 3, the debtor of the second secured debt; and (c) rescinded all the first and second secured mortgage contract regarding the instant real estate on September 12, 2008; and (d) cancelled each of the registered mortgages.

E. After September 12, 2008, Defendant 3 Co., Ltd. completed the establishment registration of a mortgage with the maximum debt amount of KRW 234 million as to the entire co-ownership of each of the instant real property at issue, on September 12, 2008.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2, Gap 2, 3, and 5-2, the purport of the whole pleadings

2. Determination as to the cause of action

A. (1) In a case where a subordinate mortgage has been established on the real estate owned by a debtor which is the object of a joint mortgage and the real estate owned by a person who has pledged the property to secure another person's property, the person who has pledged the property to secure another person's property shall first sell the real estate owned by the person who has pledged the property to secure another person's property to obtain the right to indemnity from the debtor, and at the same time the person who has pledged the property to secure another person's property shall obtain the right to indemnity from the debtor by subrogation under Articles 481 and 482 of the Civil Code, and in such a case, the subordinate mortgagee on the real estate owned by the person who has pledged the property to secure another person's property shall obtain the first mortgage prior to the transfer to the person who has pledged the property to secure another person's property. Therefore, the person who has not yet sold the property cannot file a claim for cancellation of the registration of extinction of the obligation on the 1st mortgage (see Supreme Court Decision 9Da14825, May 13, 1994).

(2) According to the above facts, Defendant 2 Co., Ltd. received 1/4 shares of Defendant 1 and Nonparty 1, 2, and 3 among the instant real estate as joint collateral. In order to secure Defendant 1’s obligation to Defendant 2 Co., Ltd., Defendant 1’s joint collateral, Defendant 1’s 1/4 shares out of the instant real estate, and Nonparty 1/4 shares of Defendant 1’s 1/4 shares out of the instant real estate, were sold first to Defendant 2 Co., Ltd., and Defendant 1’s 1/4 shares as joint collateral, were subrogated to Defendant 1’s 1/4 shares by subrogation. Nonparty 1, a surety of property to secure another’s property, on the part of Defendant 1’s 1/4 shares in each of the instant real estate, and the Plaintiff who transferred Nonparty 1/4 shares in Nonparty 1’s 1/4 shares to Defendant 1/14 shares in all of the instant real estate.

Furthermore, the registration of establishment of the first class neighborhood mortgage in the name of Defendant 2 Co., Ltd. with respect to Defendant 1-1/4 shares in the name of Defendant 1 is required to be made a supplementary registration prior to the mortgage by subrogation in the future. Thus, even if Defendant 2 Co., Ltd. extinguished the secured obligation against Defendant 1, Defendant 2 Co., Ltd., the right to cancel the registration upon termination of the mortgage contract is lost. Thus, Defendant 2 Co., Ltd.’s registration of cancellation of the registration of establishment of the collateral on Defendant 1-4 shares in September 12, 2008 shall be null and void since the registration of cancellation of the registration of establishment of the collateral on Defendant 1-1/4 shares in the name of Defendant 2 Co., Ltd. was made without any title. As long as the first class collateral of Defendant 2 Co., Ltd. on September 12, 2008 expires, Defendant 1, the debtor by subrogation, to preserve the relevant claim, can seek the execution of the registration of establishment of the collateral in the name of Defendant 1-2.

B. According to the claim of this case filed by the plaintiff on behalf of the non-party 1, who was the secured debt of the non-party 1's share of the real estate of this case, for the purpose of preserving the claims against the non-party 1, who was the secured debt of the non-party 1's share of the real estate of this case, the defendant 3 corporation, who was subject to the registration of the establishment of the non-party 1's share of the real estate of this case after the cancellation of the first priority mortgage creation registration in the name of the defendant 2 corporation, has a duty to express his consent to the registration of the above restoration as a third party with a interest in the registration. In addition, the defendant 2 corporation is obligated to perform the registration of the establishment of a mortgage

3. Determination on the assertion of Defendant 3 Company

Defendant 3’s assertion that unless the Plaintiff did not make a registration of transfer of the right to collateral security by subrogation on the part of Defendant 2 Co., Ltd., the Defendant 3 could not oppose the Defendant 3 Co., Ltd., for whom the registration of establishment of the right to collateral security was cancelled. However, Nonparty 1, a person who has pledged his property to secure another’s collateral security, acquired the first priority mortgage in the name of Defendant 2 Co., Ltd by subrogation of the person who performed the obligation pursuant to Articles 481 and 482 of the Civil Act, and this does not require the registration of acquisition of the right to collateral security by subrogation. Thus, Nonparty 1 or the Plaintiff on behalf of the Plaintiff can assert the acquisition of the right to collateral security without the registration of transfer of the right to collateral security by subrogation. Thus, the above argument

In addition, Defendant 3, as long as the first priority mortgage registered in the name of Defendant 2 Co., Ltd. was cancelled by Defendant 2’s voluntary will, the registration of cancellation of the registration of the establishment of the first priority mortgage registered in Defendant 2 Co., Ltd. cannot be claimed for the registration of cancellation. However, as seen above, insofar as the registration of cancellation of the establishment of the establishment of the first priority mortgage registered in Defendant 2 Co., Ltd. is null and void because it was made by Nonparty 1, a surety, on behalf of the mortgagee, the right to cancel the registration of establishment of the establishment of a mortgage in accordance with the subrogation of Defendant 2 Co., Ltd., the subrogated acquisitor, or

4. Conclusion

(1) Thus, Defendant 1 is obligated to perform the procedure for registration of the establishment of a neighboring mortgage in the name of Defendant 2, which was cancelled as to Defendant 1-1/4 shares of the instant real estate. (2) Defendant 3 is obligated to express his/her consent to the registration of the restoration of the establishment of a neighboring mortgage in the name of Defendant 2, which was cancelled as to Defendant 1-4 shares of the instant real estate. (3) Defendant 2 is obligated to perform the procedure for registration of the establishment of a collateral security within the scope of KRW 24 million with respect to the registration of the establishment of a neighboring mortgage in the name of Defendant 2, which was cancelled as to the instant real estate, within the scope of KRW 1/4 of the maximum debt amount of the right to the establishment of a collateral security, which was initially owned by Nonparty 1 with respect to

[Attachment] List of Real Estate: (Omission)

Justices Kim Tae-hun