In the event that an auction is conducted on the real estate owned by the debtor among the real estate owned by the debtor and the real estate owned by the debtor which is the object of the joint mortgage, whether the subordinate mortgagee on the real estate owned by the debtor may exercise the mortgage on the real estate owned by the debtor on behalf of the joint mortgagee on behalf of the debtor on one occasion (negative), and whether the same legal principle applies to the case where the real estate owned by the mortgagee on the real estate owned by the debtor becomes the object of the

Even if an auction is conducted first on the real estate owned by the debtor among the real estate owned by the debtor and the real estate owned by the debtor which is the object of the joint mortgage, the junior mortgagee on the real estate owned by the debtor may not exercise the mortgage on the real estate owned by the debtor by subrogation of the joint mortgagee No. 1 under the latter part of Article 368(2) of the Civil Act, in accordance with the latter part of Article 368(2) of the Civil Act. This legal doctrine likewise applies to cases where the real estate owned by the person who

Article 368(2) of the Civil Act

Supreme Court Decision 95Ma500 Decided June 13, 1995 (Gong1995Ha, 2493) Supreme Court Decision 95Da36596 Decided March 8, 1996 (Gong196Sang, 1209)

Samju Co., Ltd. (Law Firm Cheongpa, Attorney Shin Sung-sung, Counsel for defendant-appellant)

Industrial Bank of Korea (Law Firm Lee & Lee LLC, Attorneys Lee Do-sub et al., Counsel for defendant-appellant)

Seoul High Court Decision 2012Na97927 decided June 21, 2013

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

The grounds of appeal are examined.

Even if one co-mortgager takes place first of all on the immovables owned by the debtor among those owned by the debtor and those owned by the joint mortgagee, the junior mortgagee on the immovables owned by the debtor cannot exercise the mortgage on the immovables owned by the joint mortgagee by subrogation of the joint mortgagee No. 1 under the latter part of Article 368(2) of the Civil Code (see, e.g., Supreme Court Order 95Ma500, Jun. 13, 1995; Supreme Court Decision 95Da36596, Mar. 8, 1996). This legal principle also applies to cases where the immovable property owned by the debtor becomes an additional purpose of joint mortgage after the mortgage is established.

In light of the above legal principles and records, the court below is just in holding that even if the defendant's subordinate right to collateral security has expired by exercising the right to collateral security first with respect to the Chuncheon factory and its site owned by the debtor, among the objects of joint collateral security No. 1, the defendant's subordinate right to collateral security, the plaintiff as the subordinate mortgagee of the debtor's real estate cannot exercise the right to collateral security against the defendant's mortgage on the connection of the case owned by the non-party, and there is no error of law by misapprehending the legal principles as to Article 368 of the Civil Act

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 Kim Yong-deok (Presiding Justice)