[1] In a case where a real estate is divided after a mortgage was established with respect to a part of the real estate's share, whether each divided real estate becomes a joint security for mortgage (affirmative)

[2] Where one piece of land on which a mortgage has been established was the object of a right to a site for an aggregate building that has been established thereafter, and where an auction is conducted for a part of an aggregate building and the proceeds of auction are distributed first, whether the mortgagee is entitled to a preferential payment for the proceeds of auction corresponding to the right to a site out of the proceeds of sale (affirmative), and the scope of preferential payment (=the amount of

[3] In a case where a right to collateral security was established in the name of “A” among the lands before a partition in which shares are divided under the name of “A” and “B”, and thereafter, a right to collateral security was established in the name of “B” was newly constructed on a part of the said lands divided and completed registration of ownership ownership while registering ownership ownership was completed on the said lands; and thereafter, in a case where an auction procedure was conducted with respect to some sections of exclusive ownership among the aggregate buildings and their site ownership, Byung has the right to preferential repayment as to the part of the total proceeds from the sale of the said section

[1] Where real estate is divided after a mortgage is established as to a part of the real estate's share, the mortgage shall continue to exist on each divided real estate in accordance with the previous share ratio, and each divided real estate shall be the joint collateral of the mortgage.

[2] Where one parcel of land on which a mortgage has been established becomes the land which is the object of a right to a site for the whole aggregate building, it shall be deemed that the mortgage remains effective as it is, therefore, it shall be deemed that the mortgage remains effective by dividing it into each part of exclusive ownership and each part of exclusive ownership, and that the right to a site becomes the joint security of the mortgage. Therefore, where a mortgage was established on the site of an aggregate building before the establishment of an aggregate building and an auction was made on any section of exclusive ownership after the establishment of an aggregate building and the proceeds of the auction are distributed first, the mortgagee shall be entitled to a preferential repayment for the proceeds of the auction corresponding to the right to a site from the proceeds of the sale, and if so, the so-called joint mortgage shall be deemed to have been paid all the secured amount of the mortgage secured under the legal principle

[3] In a case where the right to a site was established under the name of "A" among the lands before a partition in which shares are divided under the name of "A" and "B" were newly constructed an aggregate building on a part of the land divided by division (hereinafter "the site in this case"), and the registration of a right to a site in this case was completed. After which, in a case where an auction procedure was conducted as to a part of an aggregate building and the right to a site in this case, the above right to a site in this case, which was established prior to the establishment of a right to a site in this case, maintains the effect of a right to a site in this case, even if the site in this case was the object of a right to a site in this case, the right to a right to a site in this part of the total sale price of the above section in exclusive ownership, and as the price for the auction of a right to a site in this case, which is part of the joint security of the right to a site

[1] Articles 269 and 358 of the Civil Act / [2] Article 368 (2) of the Civil Act / [3] Article 368 (2) of the Civil Act

[1] Supreme Court Decision 92Da30603 delivered on January 19, 1993 (Gong1993Sang, 719)

Plaintiff

Defendant

Suwon District Court Decision 201Na1566 decided August 10, 2011

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

The grounds of appeal are examined.

1. Where a mortgage has been established over a part of the real estate's share and the real estate has been divided, the mortgage shall continue to exist in accordance with the previous share ratio on each divided real estate (see Supreme Court Decision 92Da30603, Jan. 19, 1993, etc.) and each divided real estate shall be the joint collateral of the mortgage.

Meanwhile, in a case where one piece of land on which a mortgage has been established becomes the land which is the object of a right to a site for the whole aggregate building, the mortgage shall be deemed to be effective as it is, so it shall continue to exist after being divided into each part of exclusive ownership, and each part of exclusive ownership shall be the joint collateral of the mortgage. Therefore, in a case where a mortgage was established on the site of an aggregate building prior to the establishment of an aggregate building and an auction is made on any section of exclusive ownership after the establishment of an aggregate building and the proceeds of the auction are distributed first, the mortgagee shall be entitled to a preferential repayment for the proceeds of the auction corresponding to the right to a site out of the proceeds of the sale, and in such a case, the so-called so-called joint mortgage shall be deemed to have been paid all the secured amount of the mortgage secured in accordance with the

2. According to the reasoning of the judgment below, the non-party 1,2 and the non-party 3 share of 463/190, and the non-party 3 share of 264/190, respectively, were owned by the non-party 4, the non-party 4 and the non-party 2 were the non-party 4 and the non-party 4 and the non-party 2 were the non-party 4 and the non-party 9 were the non-party 1 and the non-party 3 were the non-party 4 and the non-party 3 were the non-party 4 and the non-party 4 and the non-party 9 were the non-party 4 and the non-party 4 were the non-party 4 and the non-party 4 were the non-party 9 and the non-party 4 were the non-party 4 and the non-party 4 were the non-party 9 and the non-party 2 were the non-party 9 and the non-party 4 were the non-party 9 were the non-party 9 were the non-party 2.

3. We examine the above facts in light of the legal principles as seen earlier.

Each of the instant mortgages, which was established prior to the establishment of the right to a site concerning the instant site, shall be deemed to maintain the effect of the collateral on the instant aggregate building even if the instant site became the object of the right to a site of this case. Therefore, the Defendant has the right to be reimbursed for the part regarding the right to a site out of the total proceeds of the sale of the instant exclusive ownership. Furthermore, the right to a site of the instant exclusive ownership constitutes the joint collateral of each of the instant exclusive ownership, and as the instant exclusive ownership, which is part of the joint collateral, is first distributed the proceeds of the auction of the right to a site of this case, the Defendant is entitled

The court below is just in rejecting the plaintiff's assertion that the defendant's right to preferential reimbursement exists only 1/9 of the secured claim amount of each of the instant collective security claims, since the defendant's effect of each of the instant collective security claims is equal and equal to each of the instant households in relation to the purchase price of the instant aggregate buildings, and there is no error of law such as misunderstanding of legal principles as

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 Park Poe-dae (Presiding Justice)