[2] Whether a security not extinguished by a person who has pledged his/her property to secure another's obligation under the proviso to Article 459 of the Civil Code has the same content as the existing security (affirmative)

[2] The proviso of Article 459 of the Civil Code provides that, where a guarantor or a third party has consented to the assumption of an obligation, a guarantee for the obligation of the former debtor or a security provided by a third party shall not be extinguished due to the assumption of an obligation. The consent of the assumption of an obligation under the above provision does not mean a declaration of intent to establish a new security for the person who has subscribed for an obligation, but means an expression of intent to continue the acquisition of an existing security for the person who has pledged to assume an obligation, the security which is not extinguished due to the assumption of an obligation shall naturally have

1. On the first ground for appeal

The term "liability assumption" refers to a contract with the purpose of maintaining the identity of the obligation and transferring it from the former debtor to a third person who is a third person. The obligee bears the same obligation as the former debtor and at the same time bears the same obligation as the former debtor after replacing the former debtor's status as a new party, and at the same time withdraws from the former debtor's obligation relationship and does not extinguish the former obligation. Thus, as the former obligation is extinguished due to the subsidiary nature of the mortgage, the legal principle that the mortgage securing the obligation extinguished as a matter of course is not established.

However, in cases where a third party provides a security for the obligation by creating a mortgage on the real estate owned by him/her, the third party provides a security by taking into account the debtor's ability to pay, and thus, the obligor's assumption of the obligation is likely to cause unexpected disadvantages if the obligor inevitably changes in his/her responsible property due to a change in the assumption of the obligation. Therefore, the security provided by a third party under Article 459 of the Civil Act to protect the surety's property in the case of assumption of the obligation is only defined to be extinguished

According to the reasoning of the judgment below, the court below held that each of the first and third collateral security rights in the name of the defendant was secured by the non-party 2, who is the debtor against the defendant, Dongnam International Tour Co., Ltd. (hereinafter the non-party company) and the non-party 2 on behalf of the defendant 1, but the above non-party 2 and the non-party 3, who is the non-party 3, are discharged from the obligation under their respective collateral security rights, and the additional registration of the change of the debtor with respect to each of the above collateral security rights was made under the participation of the above non-party 2, who is the non-party 2, and the third priority collateral security obligation was acquired by the above non-party 3 with the consent of the above non-party 2, and thus the above third priority collateral security obligation was not extinguished pursuant to the proviso of Article 459 of the Civil Act. The court below rejected the plaintiff's assertion that the above obligation under the non-party 1 and the above non-party 1 had been extinguished as a result of the extinction of the mortgage.

In addition, according to the records, if the former obligation is still deemed to exist despite the assumption of obligation, it is unfair to view the existence value of the subordinated mortgage system and the public announcement power of registration, and if there is an assumption of obligation, the former obligation shall be deemed to be extinguished. Therefore, although the lower court did not make any judgment on the Plaintiff’s assertion to the effect that if there is an assumption of obligation, the former obligation shall be deemed to be extinguished. However, since the lower court grasps the secondary collateral value considering the existence of the senior mortgage publicly announced by the registration, in cases where the latter is merely a transfer to the underwriter without losing the identity of the obligation due to the assumption of obligation with respect to the secured obligation of the senior mortgage, it shall be deemed that the secured obligation of the senior mortgage still exists, and it shall not be deemed that the existence value of the subordinate mortgage system and the public announcement power of registration, so the above assertion by the Plaintiff is clearly rejected, and therefore, the omission of the above judgment

2. On the second ground for appeal

The proviso of Article 459 of the Civil Act provides that if a guarantor or a third party has consented to the assumption of an obligation, a guarantee of the obligation of the former debtor or a security provided by a third party shall not be extinguished due to the assumption of an obligation. The consent on the assumption of an obligation provided for in the provisions of the above Article does not mean the expression of intent on the assumption of an obligation for the debtor, but means the expression of intent on the continuation of the existing security for the underwriter. Therefore, any security not extinguished by the consent on the assumption of an obligation shall naturally have the same contents as the existing security. If the debtor is changed due to the assumption of an obligation, a supplementary registration on the change of a mortgage shall be made only when the consent on the assumption of an obligation is attached to the registration of an obligation of the mortgagee pursuant to Article 63 of the Registration of Real Estate Act, which is dependent on the existing establishment of a mortgage and is combined with the registration, and it shall be made only on the change of the registry of the debtor due to the registration of an existing establishment of a mortgage, and it shall not be made only by the new right (see the mortgagee, etc.).

The issue is that even if the above non-party 2, who is the surety of this case, consented to the acceptance of the secured obligation of each of the first and third secured claims in this case, did not extinguish each of the above secured claims, the effect cannot be set up against the plaintiff, who is the subordinate mortgagee of the real estate in this case which completed the registration of the establishment of the collateral prior to the completion of the additional registration of each of the above secured claims, and the effect of the security takes effect only between the above non-party 2 who is the surety of this case and the assignee of the obligation, and the defendant who is the obligee, and there is no reason for the additional registration. However, the court below's rejection of the above argument to the purport of the above decision is just and there is no error of law by misapprehending the legal principles of the proviso of Article 459 of the

3. On the third ground for appeal

According to the records, the court below is just in rejecting the plaintiff's assertion that the above non-party 2 and the non-party 3 did not take over the debt of the loan against the non-party company and the defendant 1, and that the non-party 2 and the above non-party 1 borrowed new money from the defendant and subrogated for the above loan debt of the previous non-party company and the above non-party 1 to extinguish all of it, and there is no violation of the rules of evidence, such as the theory of lawsuit, and there is no ground for discussion

4. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)