A. The scope of a claim under a mortgage contract or whether a claim against a debtor, which falls within the scope prior to the change, is excluded from the secured obligation where the debtor is changed (affirmative);

B. The time when the right to collateral security has become final and conclusive (=the time of an application for auction) and whether the right to collateral security has become final and conclusive in cases where the right to collateral security had not actually filed an application for auction but failed to do so (negative

A. The right to collateral security is a mortgage which guarantees an unspecified claim arising from a continuous transaction between the parties within a certain limit, which is created and extinguished within the scope of a certain limit, and, unlike ordinary mortgage, if the secured obligation becomes final and conclusive as a result of the easing relationship with respect to the secured obligation, the scope of the obligation or the debtor may be changed. Where the scope of the obligation or the debtor is changed, only a claim or a claim against the obligor that falls within the scope of the change is naturally secured by the relevant right to collateral security, and a claim or a claim against the obligor that falls within the scope of the previous change is excluded from the scope of the obligation which

B. In the event that a mortgagee filed an application for auction on the grounds of a non-performance of the secured obligation, the collateral security shall not be deemed to have been established at the time of filing an application for auction, and when the collateral security becomes final and conclusive, the principal and the subsequent claim shall not be secured by the collateral security, but shall not have been actually filed by the mortgagee, but shall not be deemed to have been established

Articles 357 and 360 of the Civil Act

B. Supreme Court Decision 87Meu545 decided Oct. 11, 1988 (Gong1988, 1400) (Gong198, 1400) decided Nov. 28, 1989 (Gong1990, 146) 91Da17979 decided Sep. 10, 1991 (Gong191, 2516)

[Judgment of the court below]

[Defendant-Appellee] Defendant 1 and 3 others

Seoul High Court Decision 92Na20080 delivered on October 7, 1992

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

1. Summary of the reasoning of the judgment below

The court below concluded a mortgage agreement with the non-party 1 to provide the real estate of this case as security for the present and future debts on March 21, 1984. The non-party 1, the non-party 2, and the non-party 1 completed the establishment registration of a mortgage covering the debtor 1, the defendant and the maximum debt amount of 62,00,000 won on the real estate of this case. The non-party 1 did not fully repay the loan amount of KRW 10,00,000 on 2 occasions from the defendant. The non-party 2, the non-party 4 and the non-party 1 did not repay the loan amount of KRW 10,00,000 under the name of the non-party 1 and the non-party 2, the non-party 3 and the non-party 1 did not repay the loan amount of KRW 80,000,000 under the name of the non-party 1's new security right to the loan of this case.

2. First, we examine the ground of appeal No. 4.

Examining the evidence presented by the judgment of the court below in comparison with the records, the court below's decision that recognized the plaintiff as a joint and several surety for the loan obligations of Nonparty 3 is justified and there is no violation of the rules of evidence such as the theory of lawsuit. The arguments are without merit

3. We examine the grounds of appeal Nos. 1 through 3.

The right to collateral security is a mortgage which guarantees an obligation remaining after calculating an unspecified claim arising from a continuous transaction between the parties concerned at a certain time within a certain limit, and unlike the common mortgage, if the secured obligation becomes final and conclusive as a result of the easing relationship with respect to the secured obligation, then the scope of the obligation or the debtor may be changed. Where the scope of the obligation or the debtor is changed, only a claim or a claim against the obligor that falls within the scope of the change is naturally secured by the relevant right to collateral security, and a claim or a claim against the obligor that falls within the scope of the previous change is excluded from the scope of the obligation secured by the right

In light of the records, the court below recognized that the debtor of the claim secured by the right of collateral security established by the original debtor agreement on April 28, 198 between the plaintiff and the defendant on the ground of the "contract on the change of the debtor's obligation due to the replacement of the debtor and the supplementary registration on the change of the debtor, has been effectively changed from the non-party 1 to the plaintiff. In light of the records, the judgment of the court below is just. The judgment of the court below is justified. regardless of whether the debt of the non-party 1 was extinguished due to the change of the contract due to the replacement of the debtor, as alleged in the theory of lawsuit, or whether the contract on the discharge of the debt due to the assertion of the lawsuit has been effective, the above right of collateral security remains effective for the plaintiff's debt which falls within the scope of the newly secured debt (it can be called the joint and several surety debt for the new loaner that is made thereafter) and as long as the above right of collateral security remains effectively, there is no problem about the utilization of the registration of the lawsuit as pointed out.

On the other hand, the theory of lawsuit argues that since the above right to collateral security has become final and conclusive as a claim secured by the right to collateral security and has changed into a common mortgage before the above right to request a auction due to the change of the debtor's obligation, the change of debtor to the scope of the secured obligation is not allowed. However, if the mortgagee filed a request for auction due to the non-performance of the secured obligation, the right to collateral security shall be established at the time of such request for auction, and when the right to collateral security becomes final and conclusive, the principal claim created thereafter shall not be secured by the right to request a auction (see Supreme Court Decision 89Meu15601, Nov. 28, 1989), but the defendant did not actually request a auction, such as the principal claim, but did not actually request a auction, but it cannot be deemed that the right to collateral security became final

4. We examine the grounds of appeal No. 5.

The record reveals that the court below did not make any judgment as to the claim on the cancellation agreement of the establishment registration of the mortgage of this case as asserted by the plaintiff, but it cannot be deemed that there was an agreement on the cancellation of the registration as alleged by the plaintiff, even if examining the record, it cannot be said that there was an agreement on the cancellation of the registration as alleged by the plaintiff. Thus, the omission of such judgment by the court below cannot be viewed as an error affecting the conclusion of the judgment,

Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.