[1] The scope of parties who need a real right agreement in the transfer of mortgage

[2] Where a lawsuit seeking cancellation of additional registration of the right to collateral security is recognized

[1] Since a mortgage cannot be transferred separately from the secured claim, the transfer of a mortgage claim is always conducted through the combination of the transfer of a mortgage and the transfer of a mortgage, so the transfer of a mortgage claim is governed by the provisions on the change of real right in Article 186 of the Civil Act and the provisions on the transfer of a mortgage in Articles 449 through 452 of the Civil Act, so even in the transfer of a mortgage, there is a real right agreement and a mortgage should be transferred with the aim of transferring a mortgage in accordance with the general principles of change of real right. However, the real right agreement at this time is sufficient if between the parties to whom the mortgage is transferred and taken over, and it is not required that between the debtor and the surety or the surety. It is merely possible to oppose the debtor with the notification of the transfer of a mortgage and the consent of the debtor.

[2] Where the supplementary registration of the transfer of the right to collateral security is subordinate to the registration of the establishment of the right to collateral security (the existing principal registration) and is linked to the registration of the establishment of the right to collateral security, there is no practical benefit to recognize the cancellation of only the supplementary registration. However, where only the cause of the transfer of the right to collateral security is invalidated, cancelled or cancelled, the right to claim for the cancellation of the supplementary registration is exceptionally necessary, on the premise that the registration of the right to collateral security is effective.

[1] Articles 186, 361, and 450(1) of the Civil Act / [2] Article 248 of the Civil Procedure Act, Article 6(1) of the Registration of Real Estate Act

[1] Supreme Court Decision 94Da23975 delivered on September 27, 1994 (Gong1994Ha, 2816)

Plaintiff (Attorney Noh Jeong-ho et al., Counsel for the plaintiff-appellant)

National Credit Card Co., Ltd., Ltd., Counsel for the defendant-appellant-appellee)

Seoul High Court Decision 200Na62805, 62812 delivered on February 1, 2002

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

We examine the grounds of appeal.

1. As to the consent of the surety and the debtor on the transfer of collateral security

Since a mortgage is not transferred separately from the secured claim, the transfer of a mortgage claim is always carried out by combining the transfer of a mortgage and the transfer of a claim, so the transfer of a mortgage claim is governed by the provisions on change of real right in Article 186 of the Civil Code and the provisions on assignment of a claim in Articles 449 through 452 of the Civil Code.

Therefore, even in the transfer of mortgage, there should be a real right agreement and registration with the aim of transferring the mortgage in accordance with the general principle of change of real right. However, the real right agreement at this time should be sufficient if between the parties who have acquired and acquired the mortgage, and it should not be made between the debtor and the surety (Supreme Court Decision 94Da23975 delivered on September 27, 1994).

According to the reasoning of the judgment of the court below, the court below held that as long as the transferor, Dong Engineering Co., Ltd. (hereinafter referred to as "Dong Engineering"), and the transferee, as the transferee, agreed to transfer the claim for construction price against the non-party 1 and each of the non-party 2, who has pledged his property to secure another's property (hereinafter referred to as "the entire real property of this case") established on the building site of this case and the first real estate (hereinafter referred to as "the entire real property of this case"), the consent of the non-party 2, who has pledged his property to secure another's property, is not necessary. Furthermore, the non-party 1, who is the debtor, consented not only to the transfer of the above assignment of the claim and the right to collateral, but also to the notification of the transfer of the secured claim that was confirmed to the non-party 1 on February 13, 199, the transfer of each of this case's right to collateral

Examining the relevant evidence in light of the above legal principles and the records, we affirm the fact-finding and judgment of the court below, and there is no error in the misapprehension of the legal principles as to the consent of the surety in the transfer of collateral security or the misconception of facts against the rules of evidence as otherwise alleged in the ground of appeal.

2. As to the scope and extinction of each of the claims secured by the right to collateral security in this case

According to the records, on October 14, 1996, the non-party 1 and Dong engineering entered into the second contract for the construction work as indicated in the judgment of the court below and set up the construction cost by factoring transaction. The non-party 1 and Dong engineering agreed to provide Dong engineering with the whole real estate of this case as collateral for performance guarantee of the said contract. According to the above special contract, the non-party 1 and Dong engineering entered into a factoring transaction contract with Dong engineering around November 11, 1996 and the head of Dong engineering entered into a factoring contract with Dong engineering around 196. (1) The non-party 1 and the non-party 1 were transferred to Dong engineering's sales claim, i.e., the non-party 1 and the non-party 1 were transferred to the non-party 1 within the scope of 6.5 billion won, and the non-party 1 and the non-party 1 were assigned to the non-party 1 and the non-party 1 were entitled to receive the non-party 1'the non-party 1 and the non-party 1

However, the factoring transaction, which is viewed as above recognition, shall be deemed as a real loan transaction in which the Dong engineering borrowed money equivalent to the amount of the claim from YYY, i.e., the head of the claim for the construction payment against the non-party 1, transferred to YYYYY, and the head of the office shall be deemed to be a loan transaction in which he borrowed money equivalent to the amount of the claim from YYYY. Thus, the factoring Daejeon is not extinguished because the claim for the construction payment provided as security was paid to YYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYY.

Although the court below's reasoning on this part is somewhat insufficient, it is just in rejecting the plaintiff's argument that each of the claims secured by the right to collateral of this case is limited to the claims for construction cost against the non-party 1 of the East Engineering, and that it was extinguished due to the non-existence of the condition that it was the completion of construction work, or due to the non-performance of

The Supreme Court precedents cited in the grounds of appeal are inappropriate to be invoked in the instant case with different contents from the case.

3. As to whether the registration of the transfer of the right to collateral security was cancelled or not

According to the reasoning of the judgment below, with respect to the plaintiff's preliminary application for cancellation of the registration Nos. 3 and 4 of the decision, which are the supplementary registration of the transfer of each of the instant collective security rights, the court below determined that the supplementary registration of the transfer of collective security rights is an unlawful lawsuit for which there is no benefit of lawsuit, since the plaintiff's preliminary application for the registration of the transfer of collective security rights is dependent on the registration of the establishment of the existing principal registration, which is the registration of the establishment of the establishment of the existing principal registration, and thus, if the registration of the establishment of the establishment of the neighboring security right is cancelled due to the non-existence or extinction of the secured obligation

However, if the supplementary registration of the right to collateral security is subordinate to the registration of the establishment of the right to collateral security (the existing principal registration) and is linked to the registration of the establishment of the right to collateral security, there is no practical benefit to recognize the cancellation of the supplementary registration. However, if only the reason for the transfer of the right to collateral security is invalidated, cancelled or cancelled, that is, the principal registration of the right to collateral security (the right to collateral security) is subject to the establishment of the right to collateral security (the right to collateral security) on the premise that the registration of the right to collateral security (the right to collateral

In light of the above legal principles, even if the secured debt is transferred without the consent or approval of Nonparty Nonparty Nonparty Nonparty Nonparty Nonparty Nonparty Nonparty Nonparty Nonparty Nonparty Nonparty 2, at the time of the instant preliminary claim assignment, the Plaintiff asserted that the assignment of debt is invalid since Nonparty 1 did not notify the transfer or did not obtain his consent, and thus, the Plaintiff sought cancellation of only the additional registration of the transfer of the secured debt on the premise that each of the instant secured claims is valid. Therefore, the benefit of the lawsuit itself is recognized.

However, as seen earlier, each of the above arguments by the Plaintiff is based on facts not recognized, and therefore, it is erroneous for the lower court to dismiss the conjunctive claim of this case on the premise that there is no interest in the lawsuit. However, since only the Plaintiff appealed to the lower court, the lower judgment should be maintained in its entirety in accordance with the principle of prohibition of disadvantageous alteration.

4. 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 on the bench.

Justices Lee Hong-hoon (Presiding Justice)