The validity of the registration of the right to collateral security completed in the name of a third party other than the creditor (negative)

Article 357 of the Civil Act

Supreme Court Decision 208Da64478, 64485, 64492 Decided November 26, 2009 (Gong2010Sang, 12) Supreme Court Decision 2010Da54924 Decided May 13, 201

Plaintiff (Attorney Kim-type, Counsel for the plaintiff-appellant)

Defendant (Attorney Park Jong-young, Counsel for the defendant-appellant)

Gwangju High Court ( Jeonju) Decision 2010Na3044 decided April 9, 2012

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In case where the right to collateral security is established by providing real estate owned by the debtor as collateral for the right to collateral security, in principle, the right to collateral security and the right to collateral security cannot be different from the subject in light of the appendant legal principles of the right to collateral security. However, in special circumstances where an agreement was made between the creditor, the debtor, and the third party on the registration of collateral security in the name of a third party who is not a creditor, and the third party on the registration of collateral security in the name of the third party, and in light of the transaction circumstance, the third party is not limited to the name of the piece, but the third party is able to obtain effective reimbursement from the debtor, and the debtor also can be deemed to have an indivisible relationship between the creditor and the third party among the third parties who are the creditor or the nominal owner of the right to collateral security, the registration of collateral security in the name of the third party is also valid (see, e.g., Supreme Court Decisions 2008Da6478, 6485, 6492, Nov. 26, 2009>

According to the reasoning of the judgment below and the evidence duly admitted by the court below, the non-party 1 is the birth of the non-party 2, and the non-party 3 is the child between the non-party 2 and the non-party 4, and the non-party 2 and the non-party 4 are the loan claims against the non-party 5 as the secured claim, and the non-party 1 was established with respect to each land of this case owned by the non-party 1 in the name of the non-party 3, and the non-party 3 transferred the claim against the non-party 1 and received the payment from

In light of these facts, in addition to the fact that Nonparty 2 and Nonparty 4 were at issue of the transfer of the instant collateral security claim against the Defendant by Nonparty 3, or that Nonparty 1 and Nonparty 5 were not demanding the repayment of the loan, it is reasonable to deem that there was an agreement with Nonparty 2, 4, 1, and 3 regarding the establishment of the instant collateral security right in the name of Nonparty 3, and that Nonparty 2, 4, and Nonparty 3 are in an indivisible creditor relationship with respect to the relevant secured claim. In light of the legal principles as seen earlier, the instant collateral security right established in the name of Nonparty 3 cannot be deemed null and void.

For the reasons indicated in its reasoning, the court below determined that the mortgage right of this case established in the name of Nonparty 3 was valid is not somewhat insufficient, but its conclusion is just. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of logic and experience or by exceeding the bounds of the principle of free evaluation of evidence or omitting judgment.

2. Regarding ground of appeal No. 2

In light of the records, the court below recognized that the non-party 2 and the non-party 4 couple loan 168,96,500 won to the non-party 1 and the non-party 5 couple from February 20, 202 to December 8, 2005, and that the non-party 1 and the non-party 5 couple paid 85,00,000 won around March 31, 2006 and paid 85,000 won to the non-party 1 and the non-party 5 couple, and that the loan principal remains 96,859,616 won as of March 31, 206 as of March 31, 206, the date of voluntary auction of each of the lands of this case. As of December 9, 2009, calculated the secured debt of this case as 114,745,473 won without any errors in the principle of free evaluation of evidence, contrary to what is alleged in the grounds of appeal.

3. Conclusion

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.

Justices Lee Sang-hoon (Presiding Justice)