[1] In cases where a pledge is established on a claim secured by a mortgage, whether the pledgee and the pledger may only make the secured claim the object of the pledge and not make the mortgage the object of the pledge (affirmative), and whether the same applies to cases where a pledge is established on a claim secured by a mortgage and the mortgage is established to secure such claim (affirmative)

[2] Where a mortgage is established to secure a mortgage after the establishment of a pledge on a non-mortgaged claim, whether an additional registration of the pledge should be made on the registration of creation of a mortgage in order to ensure the validity of the pledge (affirmative)

[3] The case holding that in case where Gap corporation, the parent company Eul corporation, entered into a contract establishing a pledge to secure Eul corporation's obligation to pay for Byung, entered into a contract establishing a pledge to secure the above claim for the repayment of the lease deposit, and Byung, upon cancellation of the lease deposit due to the termination of the establishment registration, Eul infringed Eul's pledge and sought restitution of the above registration, there is room to view that, in light of all the circumstances, there is a special circumstance that the pledgee Gap corporation, the pledgee, was granted the right to return the lease deposit only as the object of the pledge and without the intent of the pledgee to provide the pledgee, and Eul did not complete the additional registration of the pledge as to the establishment registration for the establishment of the lease deposit, and therefore Byung's pledge cannot be viewed as having affected Byung's effect on Byung's pledge

[1] Article 361 of the Civil Act provides that “a mortgage shall not be transferred separately from the secured claim and shall not be secured by any other claim,” and does not provide that “a mortgage shall not be transferred separately from the secured claim and shall not be secured by any other claim.” In light of the purpose of the mortgage system, which is a mortgage security, the disposal of the secured claim shall be deemed as a matter of course to include the disposal of the mortgage, except in extenuating circumstances. However, when the secured claim is disposed of, the mortgage shall not be deemed as

Therefore, it is reasonable to view, in principle, that if a pledge is created on a claim secured by a mortgage, the mortgage becomes the object of the pledge along with the secured claim. However, it is possible that the pledgee and the pledger only make the secured claim the object of the pledge and do not make the mortgage the object of the pledge, which is not contrary to the nature of the mortgage. This is distinguished from the loss of the transferor's claim if only the secured claim is transferred separately from the mortgage.

Like this, where a mortgage has been established in order to secure a claim without any security, a mortgage is also an object of a pledge. However, in special circumstances, such as where a pledgee and a pledger have only secured debt as the object of a pledge, and thereafter a pledger has been granted a mortgage without the intent of the pledgee to provide it to the pledgee, a mortgage is not an object of a pledge. In such cases, a mortgage exists for the mortgagee, and where a pledge is extinguished due to such reasons as repayment of the pledgee's claim or termination of the pledge contract, the mortgagee may exercise the mortgage to collect his/her claim.

[2] Article 348 of the Civil Act provides that when a claim secured by a mortgage is made the object of a pledge, an additional registration of the pledge shall be effective against the mortgage. If a pledge established without registration due to the nature of the mortgage when a pledge was established on a claim secured by a mortgage has an effect on the mortgage as a matter of course, it may be prejudicial to the safety of transaction because it violates the principle of public disclosure and may impose an unforeseeable burden on the person acquiring or seizing the claim secured by the mortgage, a third party who acquired the mortgaged real estate, etc. Accordingly, Article 348 of the Civil Act provides that the effect of the pledge shall be limited only when the additional registration of the pledge was made at the registration of the establishment of the mortgage. In light of the legislative intent of Article 348 of the Civil Act, it constitutes a change in the real right as provided in Article 186 of the Civil Act. In light of the legislative intent of Article 348 of the Civil Act, even if a mortgage was created to secure the claim without a mortgage, there is no reason to regard the “where the mortgage was created a mortgage as a claim secured by a mortgage.”

In addition, in a case where a mortgage is created to secure a claim without a security, and where there are special circumstances such as an agreement between the parties, the mortgage may not be the object of the pledge. Therefore, in order to secure a mortgage, it is necessary to make the additional registration of the pledge available to the public.

Therefore, even if a mortgage was established in order to secure a claim without a security, Article 348 of the Civil Act is applied mutatis mutandis to the establishment registration of a mortgage, it cannot be deemed that the effect of the pledge extends to the mortgage unless the additional registration of the pledge is applied to the establishment registration of a mortgage.

[3] The case holding that the judgment below erred in the misapprehension of legal principle, which held that, in the case where Gap corporation entered into a pledge agreement with the parent company Eul corporation to secure Eul's obligation to pay for Byung, and established a mortgage to secure the repayment of the above lease deposit, Byung infringed Eul's right of pledge upon Byung upon upon Eul's right of pledge upon Eul's termination due to the termination of the establishment registration, and sought restitution of the above cancellation registration, the case held that the judgment below erred in the misapprehension of legal principle, since Eul did not have the contents of the mortgage at the time of the definition lease agreement with Gap corporation, and there was no detailed provision on the duty of the pledger, such as the duty to obtain a fixed date notice or consent from the pledgee at the time of the establishment of the pledge agreement, and there was no content of the mortgage, in light of the fact that Gap corporation, the pledgee of Eul corporation, the object of the pledge right, the object of the pledge right, and Eul did not have the right of pledge without the intent of the pledgee to provide the pledgee Byung with the right of pledge.

[1] Articles 345 and 361 of the Civil Act / [2] Articles 186 and 348 of the Civil Act / [3] Articles 186, 345, 348, and 361 of the Civil Act

[1] Supreme Court Decision 97Da33997 delivered on February 5, 1999 (Gong1999Sang, 436) Supreme Court Decision 2003Da61542 delivered on April 28, 2004 (Gong2004Sang, 898)

No. 200 Jin Investment Limited (Law Firm Jin Investment Limited, Attorneys Kim Yong-ho et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Dadam, Attorneys Choi Ho-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2015Na2023077 decided June 10, 2016

The part of the judgment of the court below regarding the claim for recovery of cancellation of the registration of the establishment of a neighboring mortgage and the ancillary claim are reversed, and that part of the case is remanded to the Seoul High Court.

1. Plaintiff’s ground of appeal

The lower court determined that it was difficult to recognize that the Defendant transferred the ownership of the instant building, but succeeded to the lessor’s status under the lease agreement, or acquired the obligation to return the lease deposit. Accordingly, the lower court rejected the Plaintiff’s claim seeking the payment of the lease deposit against the Defendant pursuant to Article 353(1) of the Civil Act as the pledgee of

Examining the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the relevant legal doctrine.

2. As to the Defendant’s ground of appeal

A. Article 361 of the Civil Act provides that “a mortgage shall not be transferred separately from the secured claim and shall not be secured by any other claim.” It does not provide that a mortgage shall not be transferred separately from the secured claim or as security by any other claim. In light of the purpose of the mortgage system, which is a mortgage security, the disposal of the secured claim shall be deemed as a matter of course to include the disposal of the mortgage, except in extenuating circumstances. However, the mortgage cannot be deemed as also disposed of at any time when the secured claim is disposed of (see Supreme Court Decisions 97Da33997, Feb. 5, 199; 2003Da61542, Apr. 28, 2004, etc.).

Therefore, it is reasonable to view, in principle, that if a pledge is created on a claim secured by a mortgage, the mortgage becomes the object of the pledge along with the secured claim. However, it is possible that the pledgee and the pledger only make the secured claim the object of the pledge and do not make the mortgage the object of the pledge, which is not contrary to the nature of the mortgage. This is distinguished from the loss of the transferor's claim if only the secured claim is transferred separately from the mortgage.

Like this, where a mortgage has been established in order to secure a claim without any security, a mortgage is also an object of a pledge. However, in special circumstances, such as where a pledgee and a pledger have only secured debt as the object of a pledge, and thereafter a pledger has been granted a mortgage without the intent of the pledgee to provide it to the pledgee, a mortgage is not an object of a pledge. In such cases, a mortgage exists for the mortgagee, and where a pledge is extinguished due to such reasons as repayment of the pledgee's claim or termination of the pledge contract, the mortgagee may exercise the mortgage to collect his/her claim.

B. Meanwhile, Article 348 of the Civil Act provides that if a claim secured by a mortgage is made the object of a pledge, an additional registration of the pledge shall be effective against the mortgage. If a pledge established without registration due to the nature of the mortgage when a pledge was established on a claim secured by a mortgage has an effect on the mortgage as a matter of course, it may undermine the safety of transaction because it violates the principle of public disclosure and may impose an unexpected burden on a person who takes over or seizes the claim secured by the mortgage, a third party who acquired the mortgaged real estate, etc. Therefore, Article 348 of the Civil Act provides that the effect of the pledge shall be limited only when the additional registration of the pledge is made at the registration of establishment of mortgage. In light of the legislative intent of Article 348 of the Civil Act, it constitutes a change in the real right as provided for in Article 186 of the Civil Act. In light of the legislative intent of Article 348 of the Civil Act, even if a mortgage was created to secure the claim without a mortgage, there is no reason to regard the “where the mortgage was created a mortgage as a claim secured by a mortgage.”

In addition, as seen earlier, in a case where a mortgage is created to secure a claim without a security, and where there are special circumstances, such as an agreement between the parties, etc., such mortgage may not be the object of the pledge. Therefore, in order to realize the effect of the pledge against the mortgage, it is necessary to make the additional registration of the pledge available to the public.

Therefore, even if a mortgage was established in order to secure a claim without a security, Article 348 of the Civil Act is applied mutatis mutandis to the establishment registration of a mortgage, it cannot be deemed that the effect of the pledge extends to the mortgage unless the additional registration of the pledge is applied to the establishment registration of a mortgage.

C. The reasoning of the lower judgment and the evidence duly admitted and examined by the lower court reveal the following facts.

(1) On April 27, 2009, the Domina Domina Domindo Private Teaching Institutes Co., Ltd. (hereinafter “topy Domina Private Teaching Institutes”) leased the instant building from the Nonparty for a fixed term of KRW 1.8 billion, and from April 27, 2009 to April 26, 201, the lease deposit was paid to the Nonparty KRW 1.8 billion (hereinafter “the lease deposit”).

(2) On October 29, 2009, Puatoa Research Institute provided as collateral the claim for the refund of the instant lease deposit in order to secure the claim for the refund of the bond owed to the Plaintiff by E.I.D., Inc., the parent company, for the Plaintiff, and entered into a pledge contract with the Plaintiff at KRW 3.6 billion with respect to the claim for the refund of the said lease deposit.

(3) On March 21, 2012, in order to secure the right to refund the lease deposit of the instant building and site owned by the Nonparty, the Korea Land and Transport Institute was established with respect to the instant building and site owned by the Nonparty, a maximum debt amount of KRW 2.45 billion, the Nonparty, the Nonparty, the Nonparty, and the Nonparty, the Nonparty, and the Korea Land and Transport Institute for Land and Transport, Atopy (hereinafter “instant collateral security”).

(4) After the divorce between the Nonparty and the Defendant, the Nonparty transferred the ownership of the instant building on July 6, 2012 due to the division of property to the Defendant.

(5) On December 27, 2012, the instant establishment registration was cancelled due to the termination of the contract.

(6) There was no content regarding the establishment of mortgage at the time of the lease agreement between the Plaintiff and the Nonparty. The Nonparty testified to the effect that, at the time of concluding the lease agreement between the Plaintiff and the Nonparty, at the time of concluding the lease agreement between the Plaintiff and the Nonparty, the obligation to obtain a fixed date notice or consent from the Nonparty, the obligation to transfer or provide all rights under the lease agreement, the obligation of the pledger, such as prohibition on the renewal of the lease agreement, or the execution condition of the pledge, and the execution method of the pledge. The Nonparty, who is the de facto manager and the obligor of the obligation to return the lease deposit, was at all not the content of the mortgage. The Nonparty testified to the effect that the Defendant cancelled the instant mortgage in order to obtain a new loan as the instant building was at the risk of establishing the instant mortgage for the purpose of accounting audit, not the instant mortgage for the Plaintiff, and the pre

D. Examining these facts in light of the legal principles as seen earlier, there is room to view that the Plaintiff, the pledgee, and the Ptotopy Institute, only the claim for the refund of the lease deposit of this case, constituted a special circumstance that does not constitute the subject of the pledge, such as the establishment of the mortgage of this case without the intent of the pledger to provide the pledgee with the right of pledge. In addition, the Plaintiff did not complete the additional registration of the pledge regarding the establishment registration of the mortgage of this case, and thus, the Plaintiff’s pledge cannot be said to affect the instant right of collateral.

E. Nevertheless, the court below held that, where a mortgage was established to secure the claim after the establishment of the pledge right, the effect of the pledge right naturally extends to the mortgage right in accordance with the principle of accessory to the mortgage rather than by an agreement between the parties on the establishment of the pledge right. In such a case, Article 348 of the Civil Act does not apply mutatis mutandis, and even if the plaintiff did not make an additional registration of the pledge right, the effect of the pledge right naturally extends to the mortgage right of this case. Accordingly, the cancellation of the registration of the establishment of the mortgage of this case without the consent of the plaintiff, who is the neighboring pledgee, infringes the plaintiff's neighboring pledge right, and thus the plaintiff can seek the implementation of the procedure for the registration of the restoration of the establishment of the neighboring mortgage of this case, which was illegally cancelled as

In so determining, the lower court erred by misapprehending the legal doctrine on the requirements for the establishment of a pledge in order to secure a claim on which a pledge has been established, and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of appeal assigning this error is with merit.

F. As long as the part of the lower judgment’s claim for the cancellation of the registration of creation near the main claimant ought to be reversed, the part of the conjunctive claim indivisiblely combined should also be reversed.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the claim for recovery of cancellation of the registration of creation of a neighboring mortgage and its ancillary claim are reversed, and that part of the case is remanded to the court below for a new trial and determination. The plaintiff's appeal is dismissed. It is so decided as per Disposition by the assent

Justices Kim Seon-soo (Presiding Justice)