[1] Where an additional registration of transfer of mortgage has been made due to an agreement on the diversion of registration of mortgage, the legal relationship

[2] Where there was an agreement on the diversion of the registration of mortgage but the additional registration of the transfer of mortgage was not made, the legal relation

[1] In the event that a mortgage is extinguished by the owner of a real estate and the debtor fully repays the debt secured by the registration of creation of the mortgage to the mortgagee who is the creditor, the registration of establishment of the mortgage shall lose its effect and shall be cancelled. However, if the owner of the real estate borrows money from the third creditor, using the registration of establishment of a mortgage in the name of the previous creditor remaining in order to secure a new loan obligation from the third creditor, and thereby the new third creditor is required to obtain the additional registration, if the new third creditor is required to obtain the additional registration, then the new third creditor who has received the registration of establishment of the mortgage may claim at any time the utilization of the registration against the owner of the real estate and oppose the claim for the cancellation of the registration of establishment. However, the new third creditor who had an interest in the registration prior to the additional registration prior to the transfer of the mortgage cannot assert the validity of the registration of establishment of the mortgage and the additional registration prior to the transfer of the mortgage.

[2] Where the owner of real estate and the new third party have agreed on the usefulness of the registration of mortgage but no additional registration of the transfer of mortgage has been made due to the lack of cooperation between the former creditor and the former creditor, the registration of creation of mortgage between the real estate owner and the former creditor is still null and void. Therefore, the real estate owner may seek cancellation of the registration of creation of mortgage against the previous creditor. However, if the former real estate owner and the former creditor and the third party including the new creditor agreed on the utilization of the registration of creation, the former creditor may oppose the claim for cancellation of the registration of creation of mortgage by agreement between the third party and the former creditor, and if the former creditor and the new third party have agreed on the utilization of the registration of creation, the former creditor may also oppose the person who is bound to seek cancellation of the registration of creation of mortgage by subrogation of the owner as he did not obtain the registration of

[1] Articles 186 and 369 of the Civil Act / [2] Articles 186 and 369 of the Civil Act

[1] Supreme Court Decision 86Da716 delivered on December 9, 1986 (Gong1987, 145), Supreme Court Decision 87Da425 delivered on October 27, 1989 (Gong1989, 1770), Supreme Court Decision 93Da31702 delivered on January 28, 1994 (Gong194Sang, 823)

Central Loyal Office Management Countermeasure Committee (Attorney Kim Young-young et al., Counsel for the defendant-appellant)

Defendant 1 and one other (Attorney Lee Young-young, Counsel for the defendant-appellant)

Seoul High Court Decision 95Na44704 delivered on November 7, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined as follows. (The supplementary reasons of appeal submitted after the expiration of the period are considered to the extent of supplement).

As to the second and third points

Defendant 2: (a) lent 30,00,00 won to Nonparty 2 on December 18, 198; (b) extended 00,00 won to Nonparty 1 for the above 0-year loan to Nonparty 2; (c) extended 00,00 won for the above 0-year loan to Nonparty 10,000 won for the above 0-year loan; and (d) extended 300,000 won for the above 0-year loan to Nonparty 2 under the name of Defendant 1 for the above 0-year loan to Nonparty 10,000 won for the above 0-year loan; and (e) extended 0,000 won for the above 0-month loan to Nonparty 1 for the above 0-month loan to Nonparty 2; and (e) extended 9,000 won for the above 0-month loan to Nonparty 1 for the above 10-month loan to Nonparty 2; and (e) received 9,000 won for the above 0-month loan.

In light of the records, such fact-finding by the court below is just and there is no error of law such as rule of experience, violation of the rules of evidence, and incomplete hearing. The arguments are without merit.

On the first ground for appeal

In the event that a mortgage is extinguished by the debtor and the owner of a real estate and the debtor repay all the obligations secured by the registration of creation of the mortgage to the mortgagee who is the creditor, the registration of establishment of the mortgage shall lose its effect and shall be cancelled. However, if the owner of the real estate borrows money from the creditor of a new third party, using the registration of establishment of a mortgage in the name of the previous creditor, which is remaining in order to secure a new loan obligation from the creditor of the new third party, and the new third party has entered into an utilization of the registration of establishment of the mortgage, and actually completed the additional registration, the new third party creditor who has received the registration of establishment of the mortgage may at any time assert the above utilization agreement with the owner of the real estate and set up against the claim for the registration of establishment of the mortgage. However, with respect to the person who has an interest in the registration prior to the additional registration of transfer of the mortgage, the validity of the registration of establishment of the mortgage and the additional registration prior to the said mortgage cannot be asserted by virtue of the agreement of the above utilization

Meanwhile, although the owner of real estate who is the debtor and the new third party reached an agreement on the utilization of the registration of mortgage as mentioned above, if the registration of mortgage was not completed due to the failure to obtain cooperation from the former creditor and the previous creditor, the registration of creation of mortgage between the real estate owner and the previous creditor is still null and void, so the registration of creation of mortgage is still deemed null and void, so the owner of real estate is entitled to seek cancellation of the registration of creation of mortgage against the previous creditor. However, if the former real estate owner and the previous creditor and the new third party parties agreed to use the registration of creation, then the former creditor can oppose the claim for cancellation of the registration of creation of mortgage by agreement between the said third party and the former creditor, and if the former creditor and the new third parties have agreed to use the registration of creation of mortgage, the former creditor can also oppose the person who has to seek cancellation of the registration of creation of mortgage by subrogation

The judgment of the court below to the same purport is just and there is no error of law such as misapprehension of legal principles as the theory of lawsuit.

Therefore, the appeal is dismissed 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 Im-soo (Presiding Justice)