[1] In cases where a person who has a legitimate interest in repayment makes a payment on behalf of the debtor for a part of the claim, whether a creditor who has a mortgage over real estate has the right to preferential payment more than a partial subrogation (affirmative)

[2] Where a credit guarantee agreement provides that "the amount recovered from a debtor, etc. after the performance of the credit guarantee obligation shall be appropriated for the repayment of the recovery agency and shall not be settled at the ratio of liability of the Credit Guarantee Fund and the creditor: Provided, That where the Fund and one of the creditors sell a security by a voluntary sale and where the relevant bill is repaid, it shall settle the amount recovered according to the ratio of guarantee," whether the Credit Guarantee Fund shall settle the amount distributed to the creditor in the course of voluntary auction for real estate (negative)

[1] In a case where a person who has a legitimate interest in repayment makes a part of the claim by subrogation for the debtor, the person who has made the subrogation shall acquire the rights to the claim and security held by the previous creditor within the extent of the value of performance performed by the person who has made the subrogation, and therefore, in a case where the creditor has a mortgage over the real estate, the creditor shall make a supplementary registration of partial transfer of the mortgage by subrogation to the person who has made the

[2] Under the credit guarantee terms and conditions, the amount recovered from the debtor, etc. after the performance of the guaranteed obligation shall be appropriated for the repayment of the recovery agency and shall not be settled at the ratio of liability of the Credit Guarantee Fund and the creditor: Provided, That in cases where the Fund and any creditor sold a security by a voluntary sale method and where they received a redemption of the relevant bill, the amount to be recovered shall be settled at the ratio of guarantee. The proviso of the above terms and conditions purports to promote the protection of rights by settling the case where the rights secured by the ratio of liability, such as where creditors could not recover claims due to the creditor's preferential repayment even if the security right was transferred through the performance of the guaranteed obligation, are damaged. On the other hand, the purpose of the main text of the above terms and conditions is to stipulate that the amount collected by each creditor of the above terms and conditions shall not be subject to settlement. In light of the purport of the above provisions and the purport of the above terms and conditions, it means the amount recovered from the security right directly secured by the guaranteed loan or the security right related thereto, regardless of the security right, and thus, it does not constitute a creditor's right to indemnity in the agreement.

[1] Articles 356, 481, 482, and 483 of the Civil Act / [2] Articles 105, 481, 482, and 483 of the Civil Act

[1] Supreme Court Decision 88Meu1797 delivered on September 27, 198 (Gong1988, 133) Supreme Court Decision 2001Da2426 delivered on June 25, 2004 (Gong2004Ha, 1216)

(Law Firm Democratic, Attorneys Yoon Jae-sik et al., Counsel for the defendant-appellant)

Industrial Bank of Korea (Law Firm Won, Attorneys Ansan-il et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na113662, 113679 decided June 25, 2009

The part of the lower judgment against the Plaintiff (Counterclaim Defendant) regarding the counterclaim is reversed, and that part of the case is remanded to the Seoul High Court.

We examine the grounds of appeal.

After finding the facts comprehensively based on the adopted evidence, the lower court determined that, inasmuch as the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) acquires the right to receive a security right from the Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) pursuant to Article 16(4) of the Terms and Conditions of this case after discharging the guaranteed obligation, the Plaintiff has a duty to settle the amount he received as a provisional seizure holder in the course of voluntary auction on the security in accordance with the ratio of liability sharing, pursuant to the proviso to Article 14 of the Terms and Conditions of this case.

However, it is difficult to accept the judgment of the court below that the plaintiff has the obligation to settle the amount distributed to the defendant as a provisional attachment authority for the following reasons.

According to the records, the terms and conditions of this case at the time when the defendant extended a loan to ○○ Industry, which is the debtor, and received partial guarantee from the plaintiff, shall discharge the principal, etc. not exceeding the amount obtained by multiplying the amount of the non-repaid loan by the guarantee ratio (Article 12(1)). The defendant shall, upon receiving the repayment of the guaranteed obligation from the plaintiff, immediately transfer the security right equivalent to the amount obtained by the guarantee agreement and the amount obtained by deducting the secured debt other than the non-repaid loan from the secured loan amount (Article 16(4)), multiplied by the guarantee ratio (the first sentence of Article 16(4). The amount recovered from the debtor, etc. after the fulfillment of the guaranteed obligation by the plaintiff, shall be appropriated for the repayment to the collection agency and shall not be settled (the main sentence of Article 14). If either the plaintiff or the defendant sold a security through a voluntary sale method and received the refund of the relevant bill, it shall be settled according to the guarantee ratio (the proviso to Article 14).

In a case where a person who has a legitimate interest in repayment, pays for a part of a claim on behalf of a debtor, the subrogated has the previous creditor's right to claim and security within the extent of the amount of the performance performed by the subrogated, and therefore, if the creditor has a mortgage over the real estate, the obligee is obligated to make an additional registration of partial transfer of the mortgage upon partial subrogation. However, even in this case the obligee has the right to preferential reimbursement against a part of the subrogated (see Supreme Court Decisions 88Da1797 delivered on September 27, 198, Supreme Court Decisions 2001Da2426 delivered on June 25, 2004, etc.). Accordingly, the purport of the proviso to Article 14 of the Terms and Conditions of this case is that even if the Plaintiff received a security right by subrogation pursuant to the main sentence of Article 16 (4) of the Terms and Conditions of this case after taking into account the following factors: the obligee's right to preferential reimbursement may not be recovered after the completion of the obligation by the Defendant, thereby securing the right of this case.

In light of the purport of the main text and proviso of Article 14 of the Terms and Conditions of this case, the collection amount to be settled under the proviso of Article 14 of the Terms and Conditions of this case in the course of voluntary auction means the amount of money collected by the security right directly secured by the floating loan or the security right related thereto, and it is clear that the amount collected by each party’s effort regardless of the security right does not constitute this.

Therefore, in a voluntary auction procedure with regard to the real estate of this case, the amount that the Plaintiff received as a creditor of provisional seizure a claim for indemnity against the ○ industry as a right to be preserved, which was apportioned to the Defendant lower than the Defendant, is not recovered from the right to collateral security of this case, but recovered by the Plaintiff’s effort, and thus, it does not constitute a collection money under the main sentence of Article

Nevertheless, as long as the Plaintiff has the right to partial transfer of security right according to the ratio of liability to the Defendant upon the performance of the guaranteed obligation, the lower court erred by misapprehending the legal doctrine on the interpretation of the terms and conditions of this case, so long as the Plaintiff has the right to partial transfer of security right in the auction procedure of real estate in this case

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Plaintiff, the part against the Plaintiff regarding the counterclaim among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)