The defendant expressed his/her intention of consent to the registration of change of the right to collateral security that the debtor of the registration of establishment of the neighboring mortgage, which was completed on June 23, 2009 by the Suwon District Court's Suwon District Court's registry office on each land listed in the attached list, was changed from the non-party 1 (joint defendant 2) to the defendant.

2. 30% of the total litigation costs incurred between the Plaintiff and the Defendant shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

With respect to the Plaintiff KRW 370,00,000 and KRW 280,00,000, the Defendant shall pay to the Plaintiff an annual amount of KRW 30% per annum from September 1, 2009 to the date of full payment, KRW 90,000,00 per annum from the day of complete payment. The Defendant shall pay to the Plaintiff an amount of KRW 20% per annum from the day after the copy of the complaint in this case is served to the day of full payment. The Defendant shall express his/her intention of acceptance with respect to the registration of change of the right to collateral security that is changed to the Defendant from Nonparty 1 (Co-Defendant 2).

2. Purport of appeal

The text of paragraph (1) is as follows.

In the first instance court, the Plaintiff filed a claim against Nonparty 1 (joint Defendant 2) for the registration of change of the right to collateral security, which was changed to the Defendant from Nonparty 1 (joint Defendant 2), and sought consent to the registration of change of the right to collateral security, along with the payment of loan, indemnity, and unjust enrichment, against the Defendant. However, the court of first instance accepted the claim against Nonparty 1 (joint Defendant 2), and accepted the claim against the Defendant, in full, partially, the claim against the loan, indemnity, and unjust enrichment, and dismissed the claim against the Defendant for the registration of change of the right to collateral security. The Plaintiff appealed only against the claim against the Defendant for consent to change of the right to collateral security. The Defendant appealed against the lost portion of the claim against the Defendant, but the Defendant’s petition of appeal was dismissed. Accordingly, the subject of this court’s judgment is limited to the claim against the Defendant for consent to change of the right to collateral security.

2. Basic facts

The reason why the court's explanation on this part is as follows: "Defendant" is "Defendant"; "Defendant 1 (Co-Defendant 2)" is "Defendant 1 (Co-Defendant 2)"; "Defendant" is "Defendant and Non-Party 1 (Co-Defendant 2)"; "Defendant and Non-Party 2" are "Defendant and Non-Party 1 (Co-Defendant 2)"; and "Defendant 2, Oct. 22, 2004" is the same as the corresponding part of the judgment of the court of first instance in addition to "O. 4, 204."; therefore, it is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

3. Summary of the plaintiff's assertion

At the time when the Plaintiff purchased from Nonparty 2 the part of the land, which was sold to Nonparty 2, the Plaintiff prepared a sales contract (Evidence A7; hereinafter “instant sales contract”) with Nonparty 1 (Co-Defendant 2), the owner on the registry, and entered into a sales contract (Evidence A7; hereinafter “instant sales contract”). As to each of the above land, the Plaintiff and Nonparty 1 (Co-Defendant 2) decided to change the debtor of the instant right to collateral security as the Defendant from Nonparty 1 (Co-Defendant 2) and the Defendant agreed on the registration of change of the right to collateral security as to each of the above land. Thus, the Defendant is obligated to give consent to the Plaintiff’s change of the debtor of the right to collateral security (Co-Defendant 2) on the registry of the instant case from Nonparty 1 (Co-Defendant 2).

4. Determination

A. The scope of an obligation or an obligor may be replaced by a mortgage which guarantees an obligation remaining after calculating an unspecified claim arising from a continuous transaction between the parties, within a certain limit, and, inasmuch as the collateral obligation becomes final and conclusive due to a easing relationship with respect to the secured obligation in terms of occurrence and extinguishment, unlike ordinary mortgages (see Supreme Court Decisions 9Da31476, Apr. 25, 2000; 2014Da219613, Oct. 27, 2014).

B. In full view of the facts acknowledged earlier and the evidence Nos. 7, 8-1 through 7, 12-1, 2, 2-2, 9-1, 12-1, 13, and 13 (part) of the evidence No. 7, and the purport of the whole pleadings in each of the testimony of Non-Party 3 and Non-Party 2 of the witness of the first instance trial, the following circumstances are revealed.

1) The defendant and the non-party 1 (joint defendant 2) decided to own land inside ( Address 1 and 2 omitted) 1/2, and completed the registration of ownership transfer in the name of the non-party 1 (the first instance court: the joint defendant 2) with respect to each of the above lands.

2) As to the land ( Address 1 and 2 omitted), Nonparty 1 (Co-Defendant 2) sold 1/2 (i.e., 1/2) out of the part that the Defendant intended to own to Nonparty 2. On October 12, 2007, Nonparty 2, the debtor Nonparty 1 (Co-Defendant 2), and the maximum debt amount of KRW 1 billion was completed on October 12, 2007, and the registration of creation of a mortgage was completed on June 23, 2009 with borrowing KRW 300 million from the Plaintiff, and completed the registration of creation of a mortgage of this case with the maximum debt amount of KRW 390 million.

3) When the Plaintiff purchases from Nonparty 2 on December 14, 2009 the part of the land ( Address 1 and 2 omitted), which was sold to Nonparty 2, the sales contract of this case was prepared between Nonparty 1 (Co-Defendant 2) who is the owner on the register of each of the above lands and the Plaintiff. Paragraph (1) of the special agreement provides that “The non-party 2 case shall be succeeded to the amount of KRW 1 billion set up on the register (Gu) No. 9 of the maximum debt amount of the right to collateral security (Gu).” Paragraph (2) provides that “The debt amount of KRW 390 million set up on the register (Gu) shall be changed to the Defendant.”

4) The Defendant, as a real estate investment business entity, offered a loan for consumption between the Plaintiff and Nonparty 1 (Co-Defendant 2), as well as arranged the terms of the instant sales contract between Nonparty 2 and Nonparty 1 (Co-Defendant 2) and the Plaintiff. Nonparty 2 testified in the trial that “Inasmuch as the Defendant issued a final decision on the bridge in the middle and made the final decision on the contract in the last place, and the witness was not a witness, the witness and the Plaintiff did not have a divided dialogue.” The witness was only given a position to sell the right, and the other party was to receive the witness, and the other party was not aware that he did not know that he would hear the other matters at all.”

5) 이 사건 매매계약서는 피고와 친분이 있는 소외 4가 근무하는 법무사 사무실에서 원고 부부와 소외 1(1심:공동 피고 2), 소외 2, 피고가 참석한 가운데 작성되었다. 소외 2는 피고와 전화통화를 하면서 ‘법무사 사무실에 피고가 모자를 쓰고 함께 있었다’는 취지로 이야기하였고, 당심에서도 ‘원고 부부와 함께 차를 타고 법무사 사무실에 갔더니, 피고가 모자를 쓴 채 있었으며, 소외 1(1심:공동 피고 2)은 나중에 잠깐 왔던 것 같다. 사무실이 꽤 컸고, 여자 1명이 왔다 갔다 하면서 서류를 꾸몄다’는 취지로 당시의 상황을 비교적 구체적으로 증언하였다. 또한 소외 2는 ‘원고 부부를 계약하는 날 처음 보았으며, 그 후에는 원고 부부가 사실확인서(갑 제12호증의 1)에 무인을 받으러 찾아왔을 때 한 번 만났다’고 증언하였는바, 소외 2가 이 사건 매매계약 체결 당시의 상황을 이야기 또는 증언한 것임을 알 수 있다. 다만, 소외 2는 ‘증인의 근저당권을 해지하기 위하여 법무사 사무실에 갔던 것 같고, 그곳에서 매매계약서가 작성되었는지는 모르겠다’고 증언하기도 하였으나, 이와 같이 증언하게 된 것은, 전항에서 본 바와 같이 이 사건 매매계약서의 내용에 관심이 없었기 때문인 것으로 보인다. 소외 4도 피고와 전화통화를 하면서, 비록 그 자리에 피고가 없었다고 이야기하기는 하였지만, 자신이 근무하는 사무실에서 이 사건 매매계약서가 작성되었다는 취지로 이야기하였다.

6) Nonparty 2 and Nonparty 5 deleted the phrase “a sales contract for Nonparty 2’s share out of the land ( Address 1 and 2 omitted)” or the phrase “a sales contract is a sales contract for Nonparty 2’s share out of the land ( Address 1 and 2 omitted),” which read the following: (a) a written confirmation (Evidence 12-1) or a written statement (Evidence 12-2-2) to the Plaintiff that “the Defendant prepared a written contract with the Plaintiff in the office of a certified judicial scrivener who works for Nonparty 4; and (b) the Defendant prepared the written contract with the Plaintiff.”

7) The Plaintiff asserts that, from Non-Party 1 (Co-Defendant 2), his wife and Non-Party 3 agreed to provide “the Defendant’s debt relationship is complicated and ( Address 1, 2 omitted) the Defendant’s share in the land.” After receiving advice from the Defendant on the change of the obligor of the instant right to collateral security against the Defendant, Non-Party 1 (Co-Defendant 2) agreed to change the obligor of the instant right to collateral security to make telephone conversations with the Defendant, and that “Non-Party 1 (Co-Defendant 2) would have changed the obligor of the instant right to collateral security.” The Plaintiff returned to the Republic of Korea, and affixed the balance on the instant sales contract containing the change of the obligor of the instant right to collateral security to the Defendant. However, the Plaintiff did not pay the remainder to Non-Party 1, 200 million won to the Defendant on December 1, 2010, and the Plaintiff did not pay the remainder to Non-Party 2’s non-Party 1’s non-party 2’s testimony and testimony to the Defendant.”

8) The Plaintiff appears to have secured the claim against Nonparty 1 (joint Defendant 2) upon the transfer of the right to collateral security from Nonparty 2, while changing the debtor of the instant right to collateral security to the Defendant, and the claim against the Defendant was also required to be secured. Furthermore, the provisions of Articles 1 and 2 of the Special Agreement on the instant sales contract may be fulfilled only with the consent of Nonparty 2 and the Defendant. In the absence of the consent of Nonparty 2 and the Defendant, there was no reason to enter each of the above provisions in the instant sales contract. Nonparty 2 did not sign and seal the instant sales contract. Nonparty 2 did not sign and seal the instant sales contract like the Defendant. Nevertheless, Nonparty 2 transferred his right to collateral security to the Plaintiff on April 9, 2010, as stipulated in paragraph (1) of the Special Agreement on the instant sales contract.

9) In the response of the first instance court, Nonparty 1 (Co-Defendant 2) did not agree to convert the instant right to collateral security into the purpose of securing the Defendant’s obligation to the Plaintiff, and Paragraph 2 of the Clause of the instant sales contract was entered at the Plaintiff’s request. However, Nonparty 1 (Co-Defendant 2) asserted that, at the time of entering into the sales contract of this case, the Plaintiff was only thought to have been trying to assume the Defendant’s liability against the Defendant in preparation for a case where the Plaintiff was unable to receive a loan from Nonparty 1 (Co-Defendant 2), and that there was a separate claim and debt between the Plaintiff and the Defendant. However, Nonparty 1 (Co-Defendant 2) claimed that the Plaintiff would have a separate claim and debt between the Plaintiff. Nonparty 2 (Co-Defendant 2) filed a claim for cancellation of the registration of collateral security on the condition of the repayment of the loan balance against the Plaintiff (Seoul High Court Decision 2013Na2029842) to the appellate court (Co-Defendant 1 (Co-Defendant 2) dismissed the Defendant’s appeal).

C. In full view of the above circumstances, at the time of entering into the instant sales contract with the Plaintiff, Nonparty 1 (Co-Defendant 2) agreed that the debtor of the instant right to collateral security was changed from Nonparty 1 (Co-Defendant 2) to the Defendant as the secured debt of the instant right to collateral security, and that the Defendant consented thereto. As such, the Defendant is obligated to express his/her consent to the Plaintiff as to the registration of change of the right to collateral security by changing the debtor of the instant right to collateral security to the Defendant from the land ( Address 1 and 2 omitted) divided into the land in the separate sheet.

5. Conclusion

Therefore, the plaintiff's claim for consent to the registration of change of right to collateral security against the defendant is justified, and the above claim in the judgment of the court of first instance is unfair, and thus it is revoked, and it is so decided as per Disposition by ordering the defendant to perform the above declaration of intention.

[Attachment]

Judges' Du-ju (Presiding Judge)