Repayment of secured debt and indemnity against a third party purchaser of collateral;

The debtor of the collateral security obligation is Nonparty A, and the plaintiff is the third acquisitor of the collateral security obligation, even if the plaintiff sold the collateral again to the defendant, barring special circumstances, such as the plaintiff's acquisition of the collateral security obligation, the defendant paid the collateral obligation to the defendant, and there is no legal basis for claiming the repayment to the plaintiff by subrogation of the secured creditor

Article 576(2) of the Civil Act

Plaintiff

Defendant

Daegu District Court Decision 66Na197 delivered on October 18, 1966

The original judgment shall be reversed, and

The case shall be remanded to the Daegu District Court Panel Division.

The plaintiff's ground of appeal No. 1 is examined.

According to the judgment of the court below, since the real estate, etc. originally owned by the non-party 1, the building, etc. was registered for the establishment of the right to collateral security, which became the non-party 2, the maximum amount of the claim, and the non-party 2. The plaintiff acquired the real estate from the above non-party 1, and then sold it to the defendant without taking any measures as to the registration of the right to collateral security, and the defendant confirmed the claim secured by the above real estate as 60,00 won and repaid it to the above non-party 2. Based on these facts, since the defendant acquired the ownership of the mortgaged real estate, he can exercise the right to demand reimbursement on behalf of the plaintiff, the creditor, within the scope of the amount repaid, and can claim a set-off against the above remaining debt owed to the plaintiff with the right to demand reimbursement.

However, according to the above facts admitted in the original judgment and evidence held by the court below, it is clear that the debtor of the secured collateral obligation is the non-party 1 and the plaintiff is only the third acquisitor of the secured real estate, and even if the plaintiff sells again the secured real estate again to the defendant, barring special circumstances, such as the plaintiff's acceptance of the secured obligation, the defendant did not have any legal basis to claim reimbursement against the plaintiff by subrogation of the secured creditor (However, if the plaintiff is the seller of the sale contract between the original defendant and the sale contract between the original defendant and has a duty to extinguish the secured real estate, which is established on the object of sale, and thus the defendant has a duty to claim reimbursement pursuant to Article 576 (2) of the Civil Act, the court below should have deliberated on this point by clearly stating the purport of its argument to the defendant, and the court below should have deliberated on necessary matters with regard to this point, on the grounds that the plaintiff has the right to demand reimbursement against the plaintiff, based on the reasons that the plaintiff has the right to demand reimbursement.

Therefore, the appeal of this case is justified without proceeding to decide on the other grounds of appeal. Thus, according to Article 406 (1) of the Civil Procedure Act, it is so decided as per Disposition by the assent of all participating judges.

[Judgment of the Supreme Court (Presiding Judge) Mag-Jak Park Mag-gu