2. The plaintiff's appeal is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 75,895,026 won with 42% interest per annum from September 3, 2008 to the day of complete payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff falling under the following order for payment shall be revoked. The defendant shall pay to the plaintiff 38,906,935 won with 30% interest per annum from September 4, 2008 to the date of full payment.

Defendant: as set forth in paragraph (1).

A. On July 18, 2006, the Plaintiff prepared a provisional registration contract for a loan for consumption of money with the Nonparty as follows, and lent KRW 100 million (payment of KRW 89.5 million after deducting advance interest from KRW 10.5 million) (hereinafter “instant loan”), and the Defendant jointly and severally guaranteed the Nonparty’s loan obligation to the Plaintiff on the same day.

Article 1 (Plaintiffs, hereinafter the same shall apply) agreed to lend KRW 100 million to Eul (Defendants, hereinafter the same shall apply) and Eul borrowed this and received the amount.

Section 2. The due date for the payment of this Loan shall be October 5, 2006, and the interest shall be 3.5% per month.

Article 3 Section B shall, in order to secure the performance of the obligation, establish a provisional registration of the right to claim transfer of ownership on the land (hereinafter referred to as “instant real estate”) and the multi-family house with three floors above the ground (hereinafter referred to as “the instant real estate”) owned by the Seoul Special Metropolitan City, Nowon-gu, Seoul Special Metropolitan City.

Article 4 Section B stipulates that the above real estate shall be immediately cancelled on June 13, 2005 as of June 13, 2005, and that the said real estate shall not be transferred, leased, or otherwise received, or disposed of without Party A’s consent during the period of establishment of provisional registration.

Not more than 10

B. At the time of the instant lease, the Plaintiff agreed to obtain a provisional registration on the instant real estate owned by the Nonparty for the purpose of collateral, but failed to obtain a provisional registration thereafter, and did not request the Nonparty to establish a provisional registration for a trial against the Nonparty.

C. On October 30, 2006, the Nonparty paid to the Plaintiff the principal and interest of KRW 45 million, including KRW 5 million on October 30, 2006 and KRW 5 million on October 31, 2006 (the remainder was appropriated for interest). Accordingly, on March 2007, the Nonparty filed an application for a payment order against the Nonparty with the Seoul District Court Mapo-Support 2007 tea390, and on March 13, 2007, the said court issued the payment order to the Plaintiff (the Nonparty) at the rate of KRW 65,00,000,000 and KRW 42% per annum from the day of serving the original payment order to the day of serving the Plaintiff, and KRW 30% per annum from the day following the day of serving the original payment order to the day of serving the Plaintiff, and KRW 300,000 per annum from the day of serving the payment order to the day of the instant case.”

D. On September 3, 2008, the Plaintiff was a creditor who was under the name of his/her debt in the case of a public auction of real estate rent in Gwangju District Court Decision 2007Ma423, 2405 (Dual), with respect to the instant real estate on September 3, 2008, and was paid a sum of KRW 14,178,944 out of KRW 90,073,970 (principal KRW 65,00,000,000 + delay delay damages + KRW 25,073,970) based on the above payment order, and was paid for delay damages after receiving dividends of KRW 65,00,00,000 and delay damages of KRW 10,895,026.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 3, non-party witness of the first instance trial, the purport of the whole pleadings

2. Determination as to the cause of action

According to the above facts, the defendant, as a joint and several surety, is obligated to pay the plaintiff the above amount of KRW 75,895,026 as well as damages for delay at the rate of 30% per annum, which is the limit prescribed by the Interest Limitation Act, within the scope of the agreed interest rate from September 4, 2008 to the date of full payment, as the plaintiff seeks.

3. Judgment on the defendant's assertion

A. Claim for revocation due to mistake

The defendant, as to the real estate of this case with exchange value sufficient for the plaintiff to repay the loan of this case, is subject to the establishment of the provisional registration of the right to claim transfer of ownership based on the promise for payment in substitutes. Thus, even if the defendant fulfilled the guarantee obligation, it is sufficient physical security and can be recovered through subrogation, and agreed to the joint and several sureties. In light of the above circumstances, the plaintiff knew that the defendant agreed to the joint and several sureties, and therefore, the defendant did not have the provisional registration of the real estate of this case even though he knew that he agreed to the joint and several sureties, the defendant claimed that the contract

The defendant's above mistake is related to the mistake of motive, so the defendant's expression of intent can be cancelled only when the motive is indicated and the plaintiff, who is the other party, was aware of it. The testimony of the non-party witness of the first instance trial alone is insufficient to recognize that the defendant's motive to jointly and severally guarantee the loan of this case is indicated on the premise that the establishment procedure of provisional registration for the real estate of this case is implemented and sufficient physical security is secured, and there is no other evidence to recognize it. Thus,

B. The assertion of immunity

(1) Whether the defendant is exempted from liability

The plaintiff neglected to take measures to secure the status as a secured party upon the establishment of the provisional registration for the real estate of this case, and thus lose the security, so even if the defendant repays the real estate to the plaintiff by subrogation of the non-party, the defendant asserts that the defendant should be exempted from liability in accordance with Article 485 of the Civil Act.

Article 485 of the Civil Act provides that a person who has a legitimate interest as the surety shall be exempted from liability to the extent that the collateral has been lost or diminished by the obligee’s intentional act or negligence, and this provision shall also include cases where the non-party fails to take measures to secure his status as a mortgagee with respect to the agreed collateral. The non-party shall fully repay the loan of this case on October 30, 2006 with the lapse of October 5, 2006. The plaintiff did not take measures such as filing a lawsuit claiming the establishment of provisional registration against the non-party even though the provisional registration was not established, it was found that the non-party was distributed as a general creditor at the auction procedure for the real estate of this case without taking measures such as filing a lawsuit claiming the establishment of provisional registration against the non-party. In full view of the arguments stated in subparagraphs 1 through 6 of the Civil Act, the non-party requested the non-party to perform the provisional registration procedure after the lease of this case, but the non-party did not comply with the lease of this case.

According to the above facts, even though the non-party did not voluntarily perform the non-party in a situation where the non-party does not comply with the request for the implementation of the provisional registration procedure, the plaintiff neglected to take necessary measures to secure the status of the provisional registration security right holder as to the real estate of this case by means of filing a lawsuit claiming provisional registration in addition to the provisional registration prohibition disposition, and did not take any measures to ensure the status of the provisional registration security holder at the expiration of the due date. Accordingly, even if the plaintiff filed for provisional registration of this case, the provisional registration of this case was completed by the Credit Guarantee Fund, and even if the plaintiff filed for provisional registration, the provisional registration of this case has no effect in relation to the Credit Guarantee Fund, which is the senior provisional seizure right holder, and thus the security of the loan of this case was lost on October 13, 2006. Accordingly, the defendant is exempted from its liability

(2) The scope of discharge

In the event of loss or reduction of security by intention or negligence of the obligee, the issue of whether statutory subrogation is exempted from liability under Article 485 of the Civil Act shall be determined at the standard point of time (see Supreme Court Decision 2001Da42677, Dec. 24, 2001; Supreme Court Decision 2007Da66590, Dec. 11, 2008; Supreme Court Decision 2007Da66590, Oct. 13, 206). Since the real estate in this case was 130,00 won as of October 13, 206, the value of the real estate in this case was 130,000 won and 74,000 won on the register was 70,000 won and 207,00 won and 34,07,000 won and 4,07,00 won and 14,07,000 won and 16,074,07,07,061.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. Since the part against the defendant which partly different conclusions in the judgment of the court of first instance is unfair, the plaintiff's claim corresponding to the above cancellation part is legitimate, and the remaining part of the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kang Shin (Presiding Judge) (Presiding Justice)