[2] The case holding that, in case where Gap borrowed money from Eul to Eul and completed the registration of creation of a neighboring mortgage with regard to Eul's share of the real estate owned by Byung as a collateral holder, Eul's relation, Eul's relation with Byung as a creditor, Eul's loan certificate, Eul's transfer of interest to Byung's bank account, etc., the above establishment of a neighboring mortgage is completed by the agreement of Eul, Eul, and Byung, and Eul can be seen as having an indivisible relation to Eul's creditor, since Eul's mortgage is valid, and Eul's debt as a collateral debt is also in an indivisible position of Eul as a creditor

Where a mortgage is created by providing real estate owned by an obligor as collateral for the purpose of securing a claim, in principle, the relevant creditor and mortgage may not be different from the relevant subject in light of the subsidiary legal principles of the security right, but in special circumstances where an agreement was reached between the creditor, the debtor and the third party regarding the registration of the mortgage in the name of a third party, which is not a creditor, and the third party to whom the relevant claim has been actually attributed, or in light of the transaction circumstances, the third party is entitled to the repayment of the claim effective from the debtor, and the debtor may also be deemed to have an indivisible relationship between the creditor and the third party among the third parties who are the creditor or the nominal owner of the mortgage (see, e.g., Supreme Court en banc Decision 9Da48948, Mar. 15, 2001; Supreme Court Decision 2008Da64784, Nov. 26, 2009).

The court below acknowledged the facts as stated in its holding. ① The plaintiff borrowed 20 million won from the non-party 1, who is the defendant's mother money, at an interest rate of 2% per month; ② the plaintiff, in order to secure the above debts (hereinafter "the debts of this case"), 3,290 out of 4,757m2 of Gangseo-gu, Busan, which is one's own possession, decided that the defendant had registered the establishment of the mortgage of this case as a collateral holder; ③ the plaintiff and the defendant did not have any direct connection with the obligations of this case; ④ The plaintiff and the defendant did not directly demand the payment of the debts of this case to the non-party 1; ⑤ The plaintiff and the defendant did not lend the debts of this case to the non-party 1, and the lawsuit of this case between the plaintiff and the defendant are merely the non-party 1 and the non-party 1, and therefore, it appears that the plaintiff did not have any objective evidence as to the occurrence of the debts of this case and the non-party 1's obligation after the expiration of this case.

However, we cannot accept the above decision of the court below for the following reasons.

According to the reasoning of the judgment below and the record, the plaintiff, on September 6, 2001, borrowed 20 million won from Non-party 1 to 20 million won per month for the above loan (hereinafter "the debt of this case") to secure the above loan obligation, and completed the registration of creation of mortgage of this case against Non-party 1, who was the non-party 1's non-party 1's non-party 1's non-party 1's non-party 2's non-party 2's non-party 2's non-party 7's non-party 2's non-party 2's non-party 2's non-party 5's non-party 2's non-party 2's non-party 2's non-party 1's non-party 2's non-party 4's non-party 1's non-party 5's non-party 1's non-party 2's non-party 2's non-party 1's debt of this case.

According to the above legal principles and the above factual relations, in light of the transactional circumstances such as the relationship between the non-party 1 and the defendant, the plaintiff prepared a loan certificate with the defendant as the creditor as to the debt of this case and the transfer of interest to the passbook in the name of the defendant, the establishment registration of the mortgage of this case in the name of the defendant was completed by agreement between the plaintiff, the non-party 1 and the defendant. The establishment registration of the mortgage of this case in the name of the defendant was completed by the agreement between the plaintiff, the non-party 1 and the defendant, and the defendant can be deemed as having an indivisible relationship between the non-party 1 and the defendant among the non-party 1 and the defendant who is the owner of the mortgage. Thus, the mortgage of this case in the name of the defendant is valid, and the plaintiff's debt against the defendant, who is in an indivisible position with the non-party 1 and the

Nevertheless, the court below held that the secured debt of this case is a debt owed to Nonparty 1 and cannot be deemed a debt owed to the defendant. Thus, the court below erred by misapprehending the legal principles as to the effect of the secured debt established in the name of a third party, not a creditor, or an indivisible claim. The ground of appeal assigning this error is with merit.

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 on the bench.

Justices Cha Han-sung (Presiding Justice)