2. Defendant 2’s counterclaim against the Plaintiff (Counterclaim Defendant) is dismissed.

3. Of the costs of lawsuit, the part resulting from the principal lawsuit shall be borne by Defendant 1 (in a case where the principal lawsuit is filed) and by Defendant 2, and by Defendant 2, respectively.

Counterclaim: (1) The plaintiff expresses his/her intention to transfer the right to claim payment of deposit money of KRW 100,786,220 of the deposit money of the Suwon District Court 2012 Geumnam Branch 1243, deposited in the future of the plaintiff, and notifies the non-party Republic of Korea that he/she transferred the right to claim payment of deposit money to the above defendant; and (2) The plaintiff expresses his/her intention to transfer the right to claim payment of deposit money of KRW 101,531,541 of the deposit money of the deposit case of KRW 372,00,000 deposited money of KRW 20,000 deposited money of KRW 372,50,000 deposited money of KRW 20,000 deposited money of KRW 101,531,541 to the above defendant.

A. On June 12, 1998, the Plaintiff acquired the ownership of 992/3607 shares (hereinafter “Plaintiff’s shares”) out of 3607 square meters ( Address omitted) (hereinafter “the instant real estate”). Defendant 1, the husband of the Plaintiff, acquired the Plaintiff’s shares of 2615/3607 shares (hereinafter “Defendant 1’s shares”) out of the instant real estate on October 7, 200.

B. On June 9, 2005, the Plaintiff and Defendant 1 (FOF) completed the registration of the establishment of a mortgage on the instant real estate (hereinafter “mortgage No. 6”) with respect to the Plaintiff and Defendant 1 (FOF) with the maximum debt amount of KRW 780,000,000,000 for the debtor as Defendant 1 (FOF) with respect to the instant real estate (hereinafter “mortgage No. 6”), under Article 4852 of the same registry office, against the Plaintiff and Defendant 1 (FOF) with respect to the Plaintiff and Defendant 1 (FOFF) as the debtor, under the title of Article 4852 of the same registry office. < Amended by Act No. 7852, Mar. 2, 2007; Act No. 260,000,000 won (hereinafter “instant mortgage No. 9”).

C. On December 11, 2009, Defendant 1 (In the case of the Nonparty 1 (in the case of the Nonparty 1 (in the case of the Nonparty 2), on December 11, 2009, Defendant 1 (in the case of the Nonparty 1 (in the case of the Nonparty 2), completed the registration of the establishment of a neighboring mortgage amount of KRW 720,00,000 to Defendant 2 as the debtor

D. On September 10, 2009, Suwon District Court Decision 2009Ma18917, Defendant 1 (Bail-man) had been forced to commence compulsory auction on September 10, 2009. On March 25, 2011, Nonparty 2 acquired the shares of Defendant 1 (Bail-man) on March 25, 201 as a result of the compulsory auction procedure, and Nonparty 2 acquired the shares of Defendant 626,621,159 and KRW 202,317,761, which is the secured amount of the secured claim, and Defendant 2, a junior mortgagee, was distributed only KRW 42,596,243, which is part of the secured claim amount, out of KRW 754,126,027.

E. However, due to the above distribution of the dividends on the instant mortgage No. 9, Defendant 1 (O.S.) acquired the Plaintiff’s share in the instant mortgage No. 6 and No. 9 on behalf of the Plaintiff as the surety against the Plaintiff, and Defendant 2 can exercise the subrogation on the part of the Plaintiff’s share in the instant mortgage No. 6 and No. 9, which Defendant 1 (O.S.) acquired on behalf of the Plaintiff, as the mortgagee of the instant subordinated mortgage, on the ground that Defendant 2 can exercise the subrogation on the part of the instant mortgage No. 6 and No. 9, without cancelling the instant mortgage No. 6 and No. 9 on March 25, 2011, each of the registration purposes of the instant mortgage No. 6 and No. 9 on March 25, 2011 are additionally registered.

F. On October 14, 2011, Defendant 2 received a voluntary decision to commence the auction on the Plaintiff’s share as Suwon District Court No. 201Mo19067, in the position of legal subrogation with respect to the right of collateral security as to the instant right of collateral security on October 14, 2011. Accordingly, the Plaintiff filed an objection with Suwon District Court No. 201Ra1586 regarding the said decision to commence the auction on the voluntary auction, and the said court rendered a decision to revoke the said decision to commence the auction on December 16, 201.

G. Among them, the Plaintiff’s share was accepted in the Korea Land and Housing Corporation in the amount of KRW 472,786,220 on April 16, 2012, and the ownership transfer registration was completed in the name of the Korea Land and Housing Corporation on May 7, 2012. On the same day, the Plaintiff’s share was revoked ex officio.

H. The Korea Land and Housing Corporation around that time deposited a land-unit bond amounting to KRW 372,00,00,000 as head of Suwon District Court 2012Hun-nam Branch 1243 as the Plaintiff, and KRW 100,786,220 as head of Suwon District Court 2012 as head of Suwon District Court 18 as head of Suwon District Court 2012.

[Ground of recognition] Facts without dispute, Gap evidence 1, 10, 14, Eul evidence 1, Eul evidence 2-1 and 2, the whole purport of oral argument

2. Determination on the legitimacy of the principal lawsuit

As the principal lawsuit of this case, the Plaintiff sought the cancellation of the right to collateral security on the Plaintiff’s share among the instant real estate, and the acceptance of the registration of cancellation against Defendant 2. However, as seen above, the Plaintiff had already cancelled the right to collateral security on the instant real estate Nos. 6 and 9, and thus, there is no interest in the lawsuit seeking the cancellation of each of the above right to collateral security and the consent thereof. Accordingly, all of the principal lawsuit of this case is unlawful.

3. Judgment on the counterclaim

A. The defendant's assertion

If the Plaintiff’s share in the instant real estate and the shares of Defendant 1 (OBE) were sold at the same time, Defendant 2 could receive a dividend of KRW 202,317,761 out of the proceeds from the sale of shares in Defendant 1 (OBE) but Defendant 2, a subordinate mortgagee of Defendant 1 (OBE)’s shares in the first sale of shares in Defendant 1 (OBE) did not receive a dividend of the above amount. As such, Defendant 2 could not receive a dividend of the above amount, Defendant 2 acquired the instant right to collateral security on the Plaintiff’s share by subrogation under Article 368(2) of the Civil Act. Accordingly, Defendant 2 could exercise the right equivalent to KRW 202,317,761, based on the right to collateral security acquired by subrogation. Since the Plaintiff’s shares were accepted as a deposit and deposited the Plaintiff as the beneficiary, Defendant 2 had a duty to claim the above amount of compensation for expropriation deposit of KRW 202,317,261.

B. Determination

(1) Even if an auction is conducted first on the real estate owned by the debtor among the real estate owned by the debtor and the real estate owned by the debtor which is the object of the joint mortgage, and even if the joint mortgagee is repaid once by the delivery of the auction proceeds, the mortgagee on the real estate owned by the debtor cannot exercise the mortgage on the real estate owned by the debtor by subrogation of the joint mortgagee once pursuant to the latter part of Article 368(2) of the Civil Act (see Supreme Court Order 95Ma500, Jun. 13, 1995).

Of the instant real estate, the Plaintiff’s share and the Defendant 1’s share in the instant real estate were the object of joint mortgage of the instant secured mortgage No. 6. However, the obligor of the secured debt is Defendant 1 (the Nonparty Nonparty Nonparty) and the Plaintiff provided the Plaintiff’s share as the object of joint mortgage. As such, Defendant 2, a junior mortgagee, cannot exercise a mortgage on the Plaintiff’s share in the instant real estate on behalf of the National Agricultural Cooperative, a joint mortgagee, under the latter part of Article 368(2) of the Civil Act, even if the Plaintiff’s share and the shares in Defendant 1 (the Nonparty Nonparty Nonparty Nonparty Nonparty 1) out of the Plaintiff’s ownership and the shares in Defendant 1 (the Nonparty Nonparty Nonparty Nonparty 1) have been put into auction first, and Defendant 2, a senior mortgagee,

(2) In a case where a subordinate mortgage has been established on the real estate owned by a debtor which is the object of a joint mortgage and the real estate owned by a person who has pledged the property owned by a person who has pledged the property to secure another's property, the person who has pledged the property to secure another's property shall first sell the real estate owned by the person who has pledged the property to secure another's property to obtain the right to indemnity against the debtor and at the same time obtain the first mortgage on the real estate owned by the person who has pledged the property to secure another's property through subrogation under Articles 481 and 482 of the Civil Act, and in such a case, the person who has pledged the property owned by the person who has pledged the property to secure another's property may obtain the first mortgage on the first time, on the first time, a subordinate mortgage on the real estate owned by the person who has pledged the property to secure another's property by auction, and on the first time, a junior mortgagee on the real estate owned by the person who has pledged the property to secure another's property can exercise the right by subrogation (see

The debtor of the secured obligation of the right to collateral security of this case 9 is the plaintiff, and the defendant 1 (the person in the counter counter counter counter counter counter counter counter-party) is a person who has pledged his property to secure another's property for the purpose of joint mortgage. Since the defendant 1 (the counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party) auctioned only to the defendant 1 (the counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party)'s share, barring special circumstances, the defendant 1 (the counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party) shall acquire the right to collateral security of this case against the plaintiff and the defendant 2, a person who has pledged his property right to collateral security of this case.

However, in a case where a third party has used his name in obtaining a loan from a financial institution, regardless of whether he is liable as a principal debtor to the financial institution which is the creditor, as a matter of course, the joint and several surety who has performed joint and several liability as a principal debtor cannot be held liable to compensate as a principal debtor for the joint and several surety who has performed his obligation as a principal debtor in an internal relationship, regardless of whether he is liable as a principal debtor to the financial institution which is the creditor. The joint and several surety, as a matter of course, shall not be held liable to compensate as a principal debtor for the joint and several surety who has performed his obligation as a principal debtor, only in a case where the third party has believed and guaranteed the third party as the principal debtor and it seems reasonable to bear the responsibility for the third party as a result of the reason attributable to the third party in the trust and good faith. (See Supreme Court Decision 2007Da75648, Apr. 24, 2008, etc.). Thus, in an internal relationship, the principal debtor cannot be held liable as a principle.

In full view of the following circumstances, which are acknowledged as a whole by comprehensively taking account of evidence Nos. 3, 5 through 9, and evidence Nos. 11 and 14 as follows, Defendant 1 (exploitant) borrowed the Plaintiff’s loan to obtain additional loans from Ansan Agricultural Cooperatives at the time of the establishment of the right to collateral security, which the said Defendant had operated, and as a result, exceeded the lending limit, Defendant 1 (exploitant) was in the position of substantial privateism in the Gyeong River, and KRW 200 million was immediately deposited into the account in the name of Gyeong River, which is the representative director of the Gyeong River Co., Ltd., and used as operating funds. In addition, Defendant 1 (exploitor) and the Plaintiff cannot be said to have been aware of the right to collateral security interest of the principal debtor No. 9, which is the Defendant 1 (exploitantant). Furthermore, Defendant 1 (exploitant) and Defendant 1 (exploitant).

(3) Ultimately, Defendant 2 cannot be deemed to have acquired or vicariously exercise the right to collateral security of the Plaintiff’s share Nos. 6 and 9 on behalf of the Ministry of National Defense. Thus, Defendant 2’s assertion based on a different premise is without merit without further review.

4. Conclusion

Therefore, since the principal lawsuit of this case is unlawful, it is dismissed, and Defendant 2's counterclaim against the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Jong-hwan