[2] In a case where a double transfer security was established by means of possession alteration of movable property, whether the first mortgagee may claim an exclusive security right (affirmative), and whether the disposal of the object of transfer security by the subsequent mortgagee constitutes a tort (affirmative)

[2] In the event a double transfer of security was established by the method of possession or alteration of movable property, the original mortgagee may claim his exclusive right against the subsequent mortgagee. Thus, the subsequent mortgagee’s act of prohibiting the original mortgagee from exercising his right to collateral security by disposing of the object of collateral security is an unlawful act that infringes on the original mortgagee’s right to collateral security, regardless of whether the act of double transfer of security constitutes embezzlement or breach of trust, or whether the subsequent mortgagee actively participated in the act of double transfer of security.

1. Regarding ground of appeal No. 1

Even if a mortgagee or a person who has created a security by means of possession and alteration of a movable property has lost possession of the movable property, the validity of the security by means of transfer shall not be affected. In the realization procedure for the enforcement of the security by transfer, all remaining creditors who have created a security by means of realization must be appropriated first in repayment of the claim of the mortgagee, and other creditors who have created the security by transfer shall not be required to distribute dividends in relation to the mortgagee. In the case of the establishment of a dual security by means of possession and alteration of the movable property, the original mortgagee may claim his exclusive security right against the subsequent mortgagee. Thus, the latter mortgagee’s act of prohibiting the original mortgagee from exercising his security right by disposing of the object of transfer is an unlawful act of double security, regardless of whether the act of establishing the security by transfer constitutes embezzlement or a crime of breach of trust, or whether the latter mortgagee actively participated in the act of establishing the security by transfer, it is an unlawful act of infringing the original mortgagee’s security right.

According to the reasoning of the judgment below, the court below found facts based on the evidence of the judgment, and found that the plaintiff had already acquired the right to transfer security of the instant container owned by the co-defendants of the court of first instance (hereinafter referred to as "Korean Co-Defendants Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co., Ltd") or at least he had been aware of the fact that he had already acquired the right to transfer security of the instant container, but he could have been negligent in doing so, and concluded a double security agreement with the above Korean Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant, Ltd., Ltd., and made a disposition to a third party by taking over the instant container of this case, and thus, the defendant is liable to compensate for damages caused by the tort since it constitutes an infringement

The first ground for appeal cannot be accepted.

2. Regarding ground of appeal No. 2

Examining the reasoning of the judgment below in light of the records, the court below acknowledged the facts based on the evidence in its judgment, and judged that according to the above facts, the above facts cannot be deemed to have reached the extent that the whole or part of the business was discontinued due to the transfer of security contract between the plaintiff and the above national transportation, the above national transportation contract of this case shall not be deemed to have reached the extent of discontinuance of the whole or part of the business.

The ground of appeal No. 2 cannot be accepted.

3. As to the third ground for appeal

According to the reasoning of the judgment below, the court below acknowledged the amount of damages suffered by the plaintiff due to the defendant's tort of this case as KRW 133,754,094, which is the market price of the container of this case at the time when the defendant disposed of the container of this case. The defendant sold the container of this case to the non-party, and agreed to receive the refund of the container of this case at the time when the defendant finally lost the defendant in the lawsuit between the plaintiff and the defendant, and rejected the plaintiff's assertion that it is improper to claim the return of the container of this case to the non-party 28, excluding the non-party 1 who transferred the container of this case to the non-party 228, excluding the non-party 1, the non-party 2 and the non-party 1, and the plaintiff can seek the return directly. Thus, the court below rejected the plaintiff's assertion that the plaintiff's claim that it is unfair to sell the container of this case to the non-party and claim compensation for damages equivalent to the market price.

In light of the records, the court below's finding that the market price at the time of the above disposal of the container of this case was KRW 133,754,094 is just and acceptable, and there is no illegality in violation of the rules of evidence as pointed out by the defendant, and as long as it is practically impossible for the plaintiff to exercise the above right to request the delivery of the container of this case by disposing of the container of this case which is the object of the plaintiff's right to collateral security, even though the plaintiff's right to request the delivery of the container of this case exists formally (under the records, the defendant did not return the container of this case so that the plaintiff can exercise the above right to collateral security even before the closing of argument of the court below near 2 years and 6 months after the lawsuit by the third party became final and conclusive as the defendant's right to collateral security, and Article 394 of the Civil Act which applies mutatis mutandis to a tort under Article 763 of the Civil Act provides for the so-called "compensation for damage without any other declaration of intention" and therefore, the court below's determination is justified.

The ground of appeal No. 3 cannot be accepted.

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.

Justices Song Jin-hun (Presiding Justice)