[2] In a case where Gap intended to sell the real estate donated by Eul after Eul died, but Eul, Eul, et al. opposed to Eul's disposal on the ground that "the above real estate was donated to Eul's parents under the condition that Eul's parents et al. et al. al. were donated, Gap prepared an agreement to pay the agreed amount, and completed the registration of establishment of a neighboring mortgage in Byung's future on the above real estate, but the issue was whether Eul's claim for the agreed amount belongs to Byung, the case affirming the judgment below holding that in light of the language and text of the above agreement and its preparation, Gap was merely obligated to pay the agreed amount, and it cannot be deemed that Eul's claim for the agreed amount was reverted to Byung

[2] In a case where Gap intended to sell the real estate donated by Eul after Eul died, but Eul, Eul, et al. opposed to Eul's disposal on the ground that "the above real estate was donated to Eul's parents under the condition that Eul et al. al. al. tells Eul's parents," Gap prepared a written agreement to pay the agreed amount, and completed the registration of creation of a collateral security in Byung's future on the above real estate, but the claim for the agreed amount belongs to Byung, the court affirmed the judgment below which held that in light of the language and text of the above agreement and its preparation, Gap, et al. was merely obligated to pay the agreed amount for the fixed amount and cannot be deemed to belong to Byung who is a collateral security holder due to assignment of claims or other circumstances.

1. If the legal meaning of the act of the mortgagee and the mortgagee of the right to collateral security is not clear, it is not a mere fact-finding but a matter of interpretation of intent. The legal meaning of the act must be reasonably interpreted in accordance with logical and empirical rules by comprehensively considering the relationship between the mortgagee and the mortgagee of the right to collateral security, the motive and background of the establishment of the right to collateral security, the parties’ genuine intent and purpose, etc. (see Supreme Court Decision 2014Da32007, Nov. 27, 2014).

2. For the following reasons, the lower court determined that the Plaintiff, who was the mortgagee of the right to collateral security, did not bear the obligation of KRW 90 million as the secured obligation of the instant right to collateral security against Nonparty 1.

A. Nonparty 1, Nonparty 2, and Nonparty 3 (hereinafter “Nonindicted 1, etc.”) and Nonparty 4 are Nonparty 5 and Nonparty 6’s children, and the Plaintiff and Nonparty 7’s children. Nonparty 5 donated the instant real estate to Nonparty 4, who is an infant, and the Plaintiff and Nonparty 7 inherited the instant real estate to Nonparty 8, etc. upon the death of Nonparty 4. While the Plaintiff and Nonparty 7 attempted to sell the instant real estate to Nonparty 8, the Plaintiff and Nonparty 7 wanted to sell the instant real estate on the condition that Nonparty 5 and Nonparty 6 gathered, Nonparty 1, etc. were donated the instant real estate on the condition that Nonparty 5 and Nonparty 6 were the parents, and the disposal of the instant real estate would cease to exist, the Plaintiff and Nonparty 7 agreed to enter into a sales contract with Nonparty 8, etc. on December 13, 2015, and on December 28, 2015, the Plaintiff shall pay KRW 700 million to Nonparty 2, respectively.

Based on the payment order finalized against Nonparty 1, the Defendant received a claim attachment and collection order against Nonparty 1’s claim against the Plaintiff on the instant collateral security against Nonparty 1, and applied for voluntary auction of the instant real estate.

B. According to the language and text of each of the instant agreements, the Plaintiff is merely obligated to pay the money to Nonparty 5, and there is no stipulation that the Plaintiff is obligated to pay the money to Nonparty 1, etc. under each of the instant agreements. Even if the draft of each of the instant agreements were involved in Nonparty 1, etc., and the lower part of the agreement on December 28, 2015 stated “ear to Nonparty 1, etc.”, it is deemed that Nonparty 1, etc. was involved in the contract for the deceased who delivers each of the instant agreements to Nonparty 5 or for the third party who is the beneficiary of Nonparty 5, and Nonparty 1, etc. did not have the right to seek the Plaintiff’s direct performance of duties.

In order to deem that Nonparty 1, etc. acquired the claim against Nonparty 5 with respect to the Plaintiff, there is no evidence to deem that the agreement was reached between Nonparty 5 and Nonparty 1, etc., and there is no evidence to deem that such agreement was reached. Each of the instant agreements appears to have been drafted to the effect that the Plaintiff would faithfully perform the duty to support Nonparty 5 and Nonparty 6. However, Nonparty 5’s transfer of the claim for the agreed amount to Nonparty 1, etc. before the birth is inconsistent with the purport of the instant agreement.

It can be seen that the right to collateral security was established to secure the obligation to pay the agreed amount to Nonparty 5, and it is difficult to view that the right to collateral security was established to secure the inheritance claim acquired by Nonparty 1, etc. when Nonparty 5 dies in the future.

Therefore, it is difficult to view that Nonparty 1’s claim on the agreed amount against Nonparty 5 was acquired by Nonparty 1 or that the claim on the agreed amount was reverted to Nonparty 1 as the secured claim on the instant collateral security.

3. Examining the reasoning of the lower judgment in light of the record, the lower court’s determination that: (a) the Plaintiff, the mortgagee of the right to collateral security, merely bears the obligation to pay the agreed amount to Nonparty 5; and (b) did not deem that Nonparty 1, the mortgagee of the right to collateral security, was attributed to the mortgagee by taking over Nonparty 5’s claim for the agreed amount against the Plaintiff is justifiable in accordance with the foregoing legal doctrine; (c) contrary to what is alleged in the grounds of appeal, the lower court did not err

4. The Defendant’s appeal is without merit, and the 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 Dong-won (Presiding Justice)