[전부금][집29(2)민,11;공1981.7.15.(660) 13970]
The subrogation of the mortgagee of the land for the compensation to be received by the landowner due to the acquisition of land through consultation under the Public Compensation for Loss (negative)
Where an agreement is reached between a landowner and a project operator with respect to the acquisition of land on which a mortgage is established under the Act on Special Cases concerning the Acquisition of Land for Public Use and the Compensation for Loss, the mortgagee of the land shall not subrogate the compensation to be received by the landowner pursuant to Article 370 and Article 342
Articles 370, 342, and Article 3 of the Civil Act for Public Use and Compensation of Loss
Attorney Lee Jong-chul et al., Counsel for the defendant
Attorney Park Young-soo, Counsel for the plaintiff-appellant of the Seoul Special Metropolitan City Mayor
Seoul High Court Decision 80Na419 delivered on July 25, 1980
The appeal is dismissed.
The costs of appeal shall be borne by the plaintiff.
The grounds of appeal are examined.
1. The judgment of the court below recognized that the agreement on the acquisition of land between the owner and the non-party regarding the land of this case included in the Jongno-gu Seoul Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Land Expropriation Act is not an agreement under the Land Expropriation Act but an agreement under the Act on Special Cases concerning the Acquisition of Public Land and the Compensation for Loss. The record is acceptable, and it cannot be said that the facts were recognized without any evidence, such as the theory of the lawsuit,
2. According to Articles 370 and 342 of the Civil Act, a mortgage may also be exercised against money or other things to be received by the mortgagee due to the loss, damage, or public collection of mortgaged property. Such subrogation is recognized in cases where it is de facto or legally impossible to exercise the mortgage on all or part of the original mortgaged property, and there is no room for the theory that no subrogation is recognized in cases where it is possible to give rise to a delay in the object even if the value of exchange of the mortgaged property is realized. However, as seen above, the agreement acquisition pursuant to the above Act on Special Cases Concerning Land is of the same nature as that of private law and it does not constitute a public collection under the Land Expropriation Act, even if the ownership of the land is transferred to the defendant, the plaintiff, the mortgagee, cannot exercise the right of subrogation on the land at issue as a mortgage, so it cannot be said that the above non-party cannot be held to exercise the right of subrogation on the road route or land under Article 5 of the Road Act (the purchase price of the land at issue). It cannot be said that it cannot be viewed that the right of subrogation on the road under Article 97 of the Road Act.
Therefore, without merit, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.
Justices Jeon Soo-hee (Presiding Justice)