If part of the claim is transferred or subrogated before the claim secured by the right to collateral security is determined, the right to collateral security cannot be transferred to the transferee or subrogated. However, if the amount of the claim secured by the right to collateral security is determined, unless the amount of the claim secured by the right does not exceed the maximum debt amount of the right to collateral security, the right to the successful bid price arising from the exercise of the right to collateral security or the right to collateral security is legally transferred to the subrogated, regardless of whether or not the additional registration of partial transfer of the right to collateral has been made, the obligee has the right to preferential payment against the partial obligor (see Supreme Court Decision 2001Da53929, Jul. 26, 2002, etc.): Provided, That if the obligee executes a loan with a partial guarantee from the guarantee institution under the premise that the obligee bears the obligation of guarantee in accordance with the credit guarantee terms and conditions, after the obligee claims the guarantee institution, or if the obligee claims dividends from the auction procedure, such as the right established by the guarantor, and exercises the right to collateral security right, the obligee shall be subject to preferential payment within the terms and conditions.

According to the records of this case, the terms and conditions of credit guarantee at the time the defendant extended a loan to Nonparty 1 Co., Ltd., for which part of the guaranteed obligation is guaranteed by the plaintiff, provide that the amount calculated by multiplying the total amount of outstanding collateral loans by the rate of partial guarantee shall be met (Article 11(1)). If the defendant sold the collateral related to non-performing loans after the repayment of the guaranteed obligation, an amount to be recovered shall be settled according to the respective ratio of responsibility of the plaintiff and the creditor (Article 13). The creditor, upon the immediate repayment of the guaranteed obligation by the plaintiff, shall transfer the security right corresponding to the amount obtained by multiplying the amount of the secured obligation other than the estimated amount of the guaranteed obligation by the partial repayment of the guaranteed obligation by the ratio of partial repayment of the guaranteed obligation to the plaintiff (the date of subrogation if the amount of the guaranteed obligation is executed in excess of the estimated amount of the guaranteed obligation, only one of the guaranteed obligation guaranteed by the plaintiff and the guarantee organization shall be interpreted to be appropriated in proportion to the respective ratio of liability of the plaintiff and the obligee.

Meanwhile, according to the facts found by the court below, the defendant completed the registration of creation of a neighboring mortgage on the real estate owned by the representative director of the non-party 1 corporation for the purpose of securing the present and future loan obligations for all of the loan transactions against the non-party 1 corporation. The defendant delayed the loan and applied for a voluntary auction on November 11, 2005 and received dividends of the maximum debt amount of 40 million won on June 23, 2006. The Korea Credit Guarantee Fund prior to the above voluntary auction, as a guarantee agency which provided a credit guarantee in accordance with the partial guarantee ratio of the principal and interest of the loan for corporate purchase, (1) as a guarantee agency which provided a credit guarantee in accordance with the partial guarantee ratio of the principal and interest of the loan for corporate purchase, (2) 329,30,910 won on December 23, 2002, (3) 208, 2018, 325, 2010 won on the aggregate of the loans to the non-party 25.

In light of the aforementioned legal principles, even if the Defendant paid the guaranteed debt calculated by the Plaintiff to the Defendant based on the partial guarantee rate and received dividends of KRW 400 million, which is the sum of the maximum debt amount of the right to collateral security upon filing an application for a voluntary auction based on the right to collateral security, the Defendant, among the terms and conditions of credit guarantee, can only repay the remainder of the guaranteed loan guaranteed by the Korea Credit Guarantee Fund, with priority over his/her own claims, and (4) general principal and interest, which are claims other than the amount of loan due to the credit guarantee, among the principal and interest of corporate purchase loan, and (5) general principal and interest, which are claims other than the amount of loan guaranteed by the Korea Credit Guarantee Fund. In addition, with respect to the remainder of the remainder of the guaranteed loan, the Defendant calculated the amount to be appropriated for the remainder of the guaranteed loan by treating

Therefore, the court below did not examine the scope of the performance of the secured debt and the provisions on the satisfaction of the secured debt at the time of the execution of the security right to the secured debt as stipulated in the credit guarantee terms and conditions, and determined that the amount of the secured debt exceeds 400 million won, which is the sum of the maximum debt amount of the secured debt at the time when the secured debt amount is determined according to the Defendant's auction application. Thus, the court below erred by misapprehending the legal principles as to the scope of the performance of the obligation

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)