[1] In a case where a person who has a legitimate interest in repayment made a part of the claim on behalf of the debtor, the order of performance between the partial subrogation and the creditor

[2] In a case where a person who guaranteed a claim for reimbursement against a certain subrogation for the obligor by paying his/her guaranteed obligation, and then subrogates the partial subrogation, whether he/she may subrogate the right under the "special agreement for recovery" between the obligee and the some subrogation (negative)

[1] In a case where a person who has a legitimate interest in repayment makes a payment by subrogation for a part of the claim on behalf of the debtor, the person who makes the payment by subrogation shall acquire rights to the claim and security held by the previous creditor within the extent of the value of performance by which the person makes the payment by subrogation. Therefore, in a case where the creditor has a mortgage over the real estate, the creditor is obligated to make a supplementary registration of partial transfer of the mortgage by subrogation to the person who makes the payment by subrogation, but in this case, the creditor shall have the right to preferential payment against a part of the subrogation,

[2] In a case where a creditor is subrogated by performance, the "claim and the right to collateral are only transferred to the person performing the obligation, but the status of the contracting party is not transferred, and the "claim and the right to collateral" which a person subrogated by performance may exercise within the scope of the right to indemnity, includes the right to be held by the creditor based on the special agreement, if there is a special agreement between the creditor and the obligor to secure the performance of the obligation. However, it is difficult to view that the special agreement on the priority of repayment (hereinafter "special agreement on preferential recovery") which does not pass through the agreement between the creditor and the partial subrogation is included in "claim and the right to collateral". Considering that the special agreement on the priority of repayment (hereinafter "special agreement on preferential recovery") cannot be seen as being included in "right to claim and collateral," even if a person who guarantees a part of the obligor's right to indemnity has been subrogated again by the obligee by performing his/her guarantee obligation, it cannot be deemed as being subrogated or transferred to the obligee as a matter of course, but

[1] Articles 105, 356, 481, 482, and 483 of the Civil Act / [2] Articles 481, 482, and 483 of the Civil Act

[1] Supreme Court Decision 97Da53663 Decided September 8, 1998 (Gong1998Ha, 2404), Supreme Court Decision 2005Da19958 Decided July 28, 2005, Supreme Court Decision 2009Da57545, 57552 Decided November 26, 2009 (Gong2010Sang, 26)

[Defendant-Appellant-Appellee-Appellant (Law Firm Hunumam, Attorneys Yu Byung-il et al., Counsel for defendant-appellant-appellant)

[Plaintiff-Appellant] Specialized in the Green Cross-Backed Co., Ltd. (Law Firm Rate, Attorneys Yoon Yong-pon et al., Counsel for plaintiff-appellant

Seoul High Court Decision 2009Na15581 decided September 11, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

In cases where a person who has a legitimate interest in performance, pays for a part of a claim on behalf of a debtor, the subrogated shall acquire the rights to the claim and security held by the previous obligee within the extent of the value of performance performed by the subrogated. Therefore, in cases where the obligee has a mortgage over real estate, the obligee shall be obliged to make a supplementary registration of partial transfer of the mortgage upon partial subrogation. However, in such cases, the obligee shall have the right to preferential reimbursement against a part of the subrogated. However, in cases where the obligee has made a separate agreement as to the priority of performance (hereinafter “priority recovery agreement”) between a partial subrogation and the obligee, the priority of performance shall be determined pursuant to the agreement (see Supreme Court Decisions 97Da5363, Sept. 8, 1998; 2005Da1958, Jul. 28, 2005).

In light of the reasoning of the judgment below and the records, the Industrial Bank of Korea concluded a collective security loan of 182,710,000 Japanese currency on September 27, 2006 with 200,000,0000 won for the loans of 208,000,000 won for the loans of 20,000,000,000 won for the loans of 20,000,000,000 won for the loans of 20,000,000,000 won for the loans of 20,000,000,000,000 won for the loans of 20,000,000 won for the loans of 20,000,000 won for the loans of 20,000,000 won for the loans of 28,000,000 won for the loans of 20,000,000 won.

According to the above legal principles, the special agreement on preferential recovery of this case was concluded separately between the Credit Guarantee Fund and the Industrial Bank of Korea, which is a part of the subrogation, and the order of repayment is determined according to the special agreement on preferential recovery of this case between the Credit Guarantee Fund and the Industrial Bank of Korea. However, even if the plaintiff, who guaranteed the obligor's obligation for indemnity against the Neel Traelco, has been subrogated to the Credit Guarantee Fund again, he cannot assert the priority order of repayment according to the special agreement on preferential recovery of this case in relation to the defendant. Further, the Supreme Court Decision 2000Da37319 Decided January 19, 201 as stated by the court below, issued a preferential agreement on preferential recovery of part of the obligor's obligation to the obligee upon receipt of a partial subrogation from the obligee, and later, even if all of the obligee's remaining claims were transferred by subrogation from the obligee and subrogated to the obligee, the obligee cannot claim the remainder of the obligee's right under the special agreement on preferential recovery of the obligee's right by subrogation.

Nevertheless, the lower court, based on the circumstances indicated in its holding, erred by misapprehending the legal doctrine on the priority of repayment between a partial subrogation and a creditor, thereby adversely affecting the conclusion of the judgment.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)