Plaintiff 1 and two others (Attorney Kim Jong-woo, Counsel for the plaintiff-appellant)

Defendant (Attorney Kang Jae-won, Counsel for defendant-appellant)

April 20, 2011

Jeju District Court Decision 2009Kadan19405 Decided September 3, 2010

1. Revocation of a judgment of the first instance;

2. All plaintiffs' claims are dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

Purport of claim

The defendant shall execute the procedure for cancellation of registration of establishment of a neighboring mortgage which was completed on May 18, 2001 by the Jeju District Court No. 17571 with respect to the shares of the plaintiffs listed in the separate sheet No. 2 among each real estate listed in the separate sheet No. 1 (the plaintiff shall primarily seek the above claim at the court of first instance, and in relation to the registration of establishment of a neighboring mortgage which was completed on September 8, 2009 by the Jeju District Court No. 32545 with respect to each real estate listed in the separate sheet No. 1, the defendant shall confirm that the secured obligation against the defendant based on the above collateral No. 1 does not exist exceeding 54,086,483 won per head of the plaintiffs, and the above preliminary claim was withdrawn at the court of first instance).

Purport of appeal

The same shall apply to the order.

1. Basic facts

The reasoning for this part of the judgment of the court of first instance is as stated in Paragraph (1) of Article 420 of the Civil Procedure Act, except for the following: (a) the part of the reasoning for the judgment of the court of first instance, which read: (b) the part of the judgment of the court of first instance as follows; and (b) the part of the judgment of the court of first instance, which read that “the secured debt of this case 450,000,000 won (hereinafter “the secured debt of this case”) was subrogated for the loan of this case” as “the secured debt of this case was subrogated for 474,962,421 won, which is the entire secured debt of this case; and (b) the same part of the reasoning for the judgment of

B. The non-party 1 (the non-party to the judgment of the Supreme Court) was awarded the instant orchard of KRW 680,130,00 in the real estate auction case of the Jeju District Court around 98,16021 under the joint name with the defendant who is his wife, and paid the price for the instant orchard of KRW 680,130,00. On February 11, 2000, the non-party 1 and the defendant completed the registration of ownership transfer as to the instant orchard of KRW 1/2 shares in each of the instant orchard of KRW 50,00,000 and KRW 260,000,000, KRW 260,000, KRW 150,000 on May 25, 202, and KRW 150,000,000 on June 29, 200 and KRW 50,000 on the instant orchard of KRW 50,000 (the non-party 1).

2. The parties' assertion

A. The plaintiffs' assertion

The repayment of each of the loans in this case is non-party 1, who is not the defendant, and even if the defendant repaid each of the loans in this case, it is unreasonable for the defendant to exercise the right to indemnity against the plaintiffs. Thus, as long as each of the loans in this case is extinguished due to the repayment, the defendant has the duty to cancel the right to collateral security

B. Defendant’s assertion

The debtor of each of the loans in this case is the non-party 1, and the defendant paid each of the loans in this case as a surety's surety, and the defendant has the right to claim the amount of subrogation against the plaintiffs.

3. Determination

A. Obligor and obligor of the instant loan

The facts that the defendant and the non-party 1 were married couple, and the defendant and the non-party 1 were awarded a successful bid for the instant orchard under the joint names as seen earlier. However, this circumstance alone is insufficient to recognize that the defendant is a de facto debtor of the instant loan, or that the non-party 1 repaid the instant loan.

Rather, in full view of the evidence No. 3, No. 4-1, No. 4-2, and fact-finding with respect to the No. 1, No. 4-2, and the facts-finding with respect to the No. 1, the defendant and the non-party No. 1, on February 11, 2000. The loan date of each of the loans of this case is May 24, 2001, after the lapse of one year, and May 25, 2002, and June 29, 2002; each credit transaction agreement and mortgage contract related to each of the loans of this case are the non-party No. 1 as the debtor; the defendant signed and sealed as the surety's surety; the defendant was aware that the non-party No. 50 million won from the non-party No. 2 on Sep. 4, 2009 to the extent that the loan contract of this case was not established as the loan amount of 100,000 won.

(b) Subrogation of a person who has pledged his/her property;

On the other hand, the facts that the Defendant is in the position of the surety of this case, the fact that the Defendant subrogated for 474,962,421 won, which is the full amount of the secured obligation of this case, as seen above. The person who has a legitimate interest to repay can, as a matter of course, subrogate the obligee and exercise the right to the security within the limit of the right of indemnity (Article 481, 482(1) of the Civil Act). Although Article 482(2) of the Civil Act provides for the relationship between the surety and the third acquisitor (Article 1), the relationship between the surety and the third acquisitor (Article 3), the relationship between the surety and the third acquisitor (Article 4), the relationship between the surety and the third acquisitor, and the relationship between the surety and the third acquisitor (Article 5). However, in light of the difference between the surety and the third acquisitor, the Plaintiffs cannot exercise the right of subrogation against the obligee in proportion to the number of the obligee's subrogation.

C. The scope of subrogation by the defendant

The Plaintiffs filed a claim for the implementation of the registration procedure for cancellation of the instant right to collateral security on the ground that all the secured debt of the instant case was extinguished. However, the Plaintiffs also sought to cancel the instant right to collateral security on the condition that the secured debt is remaining if the secured debt is repaid.

The plaintiffs asserted that the defendant may subrogate the plaintiffs within the limit of 54,086,483 won, respectively, pursuant to Article 482 (2) 3 and 4 of the Civil Code. However, Article 482 (2) 3 of the Civil Code is not applicable directly to this case, and Article 482 (2) 4 of the Civil Code is not applicable directly to this case. In addition, the plaintiffs are transferred the shares of the orchard from the debtor who is responsible for the debt, and if the third acquisitor who acquired the mortgaged real estate from the debtor is treated as the surety, as argued by the plaintiffs, it is unfavorable to the third acquisitor who acquired the mortgaged real estate, and the third acquisitor who acquired the mortgaged real estate with the knowledge that the mortgage was established, it is not possible to apply the provisions on mutual subrogation between the third acquisitors to the plaintiffs, who are third acquisitors of the mortgaged real estate. Thus, the defendant's assertion that the scope of subrogation of the plaintiffs is limited to each of the plaintiffs as 548,486, and 483.

Therefore, the plaintiffs can not seek cancellation of the right to collateral security of this case against the defendant unless they pay the full amount by subrogation to the defendant, and the plaintiff basically seeks cancellation of the whole right to collateral security of this case, and the judgment of prior performance for the plaintiffs is on the premise that the scope of subrogation by the defendant is limited to the amount of KRW 54,086,483, respectively, against the plaintiffs, it is reasonable to deem that the plaintiff has no intention to pay the whole amount of subrogation of this case to the defendant. Therefore, it is not necessary to seek cancellation of the registration of creation of a right to collateral security of this case as a lawsuit for future performance.

4. Conclusion

Therefore, all of the plaintiffs' claims are dismissed due to the lack of reasonable grounds, and since the judgment of the first instance is unfair, the defendant's appeal is accepted, and the judgment of the first instance is revoked and all of the plaintiffs' claims are dismissed. It is so decided as per Disposition.

[Attachment]

Judges injured Persons (Presiding Judge) and Jin-Jin for Kim Ho-ho