In a case where a mortgage is established on a real estate and a ship as security for the same claim, whether the latter part of Article 368(2) of the Civil Act on the subrogation of the mortgagee in priority may be applied or applied by analogy (

Where a mortgage has been established on real estate and a ship as a security of the same claim, the provisions of the latter part of Article 368(2) of the Civil Act are not applied or analogically applied to the same claim, and where a subordinated mortgage has been established only on the ship after the prior mortgage was established in order to secure the same claim, the first priority mortgagee is in the process of exercising the security right to the ship, and even if a junior mortgagee receives the total amount of the secured debt from the auction price for the ship and receives dividends only to the amount less than the amount that could have been paid if the mortgagee would have carried out the procedure of exercising the security right to real estate and the ship at the same time, the junior mortgagee on the ship cannot subrogate

Article 368(1) and (2) of the Civil Act; Article 871(1) and (3) of the Commercial Act; Article 678 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (see current Article 172 of the Civil Execution Act)

Plaintiff (Attorney Jeong-hee et al., Counsel for plaintiff-appellant)

Korea Light Bank (Law Firm Pule, Attorneys Jeong Jong-chul et al., Counsel for the defendant-appellant)

Busan District Court Decision 2000Na19721 delivered on July 13, 2001

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

Article 368(1) of the Civil Act provides that "where a mortgage has been created on several immovables as security for the same claim, if the proceeds of the auction of such immovables are distributed at the same time, the apportionment of the claim shall be determined in proportion to the proceeds of the auction of such immovables, and Article 368(2) provides that "if the proceeds of the auction of part of the immovables mentioned in the preceding paragraph are to be distributed first, the mortgagee may obtain a full repayment of the claim from such proceeds. In such cases, the mortgagee next in priority may exercise the mortgage by subrogation to the extent of the amount which the latter would have received from other immovables in accordance with the provisions of the preceding paragraph."

However, a ship is an original movable property, and Article 871(1) and (3) of the Commercial Act provides that the ship can be the object of a mortgage, and the provisions on mortgages of the Civil Act shall apply mutatis mutandis to a ship. However, since the mortgage of the ship is not a separate provision regarding the ship as real property, the mortgage of the same claim does not constitute "the case where a mortgage is created on several real estate as security of the same claim as provided by Article 368(1) of the Civil Act", and therefore, the provisions of the latter part of Article 368(2) of the Civil Act, which stipulates the subrogation right of a junior mortgagee under the premise that this Article applies to Article 368(1) of the Civil Act, shall not apply directly to the case where a mortgage is established on real estate as security

In addition, since the latter part of Article 368(2) of the Civil Act provides that the subrogation right of a subordinate mortgagee under the premise that Article 368(1) of the Civil Act shall apply mutatis mutandis to the compulsory auction procedure of a ship. Thus, in order to apply mutatis mutandis the latter part of Article 368(2) of the Civil Act to the case where a real estate and a ship has been established as a security of the same claim, it should be legally possible to distribute the proceeds of auction simultaneously after the exercise of a mortgage in accordance with the same procedure. However, the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) classifies the compulsory auction procedure of a ship which is applied mutatis mutandis to the auction procedure for exercising a security right to a ship and the auction procedure for exercising a security right to real estate for real estate for the purpose of real estate and a ship for the purpose of real estate for the purpose of real estate, since there are many provisions concerning compulsory auction procedure which are different from real estate for exercise of a security right to a ship, it is difficult to apply mutatis mutandis to the auction procedure.

In addition, the registration of real estate and registration of a ship are different from the method of public announcement, and there is no ground provision that can publicly announce that the relationship of joint mortgages is in the relationship of joint mortgages when the real estate and the ship are mortgaged as security of the same claim, so long as the relationship of joint mortgages is not publicly announced in the register, there is room for lower-ranking mortgagee to have the expectation that the share of liability due to the auction price of the joint mortgages is shared. In this regard, it is difficult to view that the latter part of Article 368(2) of the Civil Act should apply mutatis mutandis to the case where the real estate and the ship are mortgaged as security of the same claim.

Therefore, in cases where a mortgage is established on real estate and a ship as security of the same claim, the provisions of the latter part of Article 368(2) of the Civil Act are not applied or analogically applied to the case where a subordinated mortgage is established only with respect to the same claim after the prior mortgage is established in order to secure the same claim, the first priority mortgagee should not subrogate the mortgage of the mortgagee on the ship in accordance with the provisions of the latter part of Article 368(2) of the Civil Act, even if a junior mortgagee receives the total amount of the secured debt from the auction price for the ship and received dividends from the auction price for the ship, and at the same time, a junior mortgagee on the ship should not be subrogated to the mortgage of the mortgagee on

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the scope of application under Article 368 of the Civil Act.

The arguments in the appellate brief and the supplemental appellate brief shall not be accepted.

Therefore, the plaintiff's appeal is dismissed, and all costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)