208Na19659 Liability

A (56 years old, South)

Attorney Han-chul et al., Counsel for the defendant

B (60 years old, South)

Busan District Court Decision 2007Gaso769608 Decided October 13, 2008

August 20, 2009

September 17, 2009

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 20 million won with 20% interest per annum from the delivery date of the complaint of this case to the day of complete payment.

The same shall apply to the order.

1. The following facts are acknowledged by adding the whole purport of the pleading to the entries in Gap evidence Nos. 1 to 6, Eul evidence No. 1, and Eul evidence No. 1.

A. On February 6, 1998, the Plaintiff purchased 8628/1570 of the Jin Chang-gun, Sejong-do Forest 1570m (hereinafter referred to as "land prior to subdivision") from C on March 27, 1998, and completed the registration of ownership transfer for the said shares on March 27, 1993. At the time of purchase, the first priority mortgage, which is 9.5 million won with respect to the entire land prior to subdivision, the first priority mortgage, which is 20 million won with maximum debt amount, D2, and D3 with respect to the said shares, was respectively set. (1) The Plaintiff divided the said shares with C1 and the land prior to subdivision on March 27, 1998, and entered in the separate list (hereinafter referred to as "land subject to subdivision"), and entered in the separate list (hereinafter referred to as "land subject to subdivision") with respect to the said shares in accordance with paragraph (1) (2) (hereinafter referred to as "registration 26) with respect to the land subject to subdivision.

(2) When the land before subdivision was divided into the land Nos. 1 and 2 as above, the second priority mortgage, which was set up for C’s shares out of the land before subdivision, was additionally registered as the second priority mortgage (hereinafter “instant joint collateral mortgage”) with respect to the shares of 8628/1570, equivalent to the shares of C out of the land Nos. 1 and 2 divided on June 26, 202.

C. After that, the plaintiff filed a lawsuit against C1 for the partition of co-owned property as the Youngcheon District Court Young-gu 2003da3152, and on October 15, 2003, the above court rendered a judgment against the plaintiff on March 27, 1998 as to the portion of C1 shares in the land 1, and the above judgment became final and conclusive on November 2, 2003. The plaintiff was based on the above co-owned property partition agreement, and the whole co-owner's share transfer registration was completed on November 5, 2003 with respect to the land 1, and on the land 2, the registration of transfer was completed in the name of the plaintiff on November 1, 2003.

D. (1) On December 9, 2003, the Plaintiff transferred the above right to collateral security from D1, which was the first right to collateral security on land No. 2, and made a supplementary registration for the transfer of the right to collateral security in the future of the Plaintiff.

(2) On January 14, 2004, the Plaintiff paid KRW 18,000,000 to D2 and D3, a joint mortgagee of the instant case, and delegated the right to cancel the said joint collateral security to the Defendant who is a certified judicial scrivener after having renounced the said joint collateral security from D2 and D3. Accordingly, the Defendant filed an application for cancellation of the said joint collateral security on the ground of termination as of January 14, 2004, and the registration of the said joint collateral security was entirely cancelled.

E. After that, on April 26, 2005, the Plaintiff filed an application for the auction procedure of real estate rent for the second land in Youngcheon District Court (No. 2385, 2005) with the first mortgagee on April 26, 2005 (No. 2385, 2005), and on November 11 of the same year, received dividends of KRW 9,500,000 from the above auction procedure as the first mortgagee.

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

The Plaintiff paid KRW 18,00,00 to D2 and D3, a joint mortgagee of the instant joint collateral security, for the repayment of the above joint collateral security obligation, and was in the position of subrogation of the said joint collateral security right. However, even though the Defendant entrusted the Defendant, a certified judicial scrivener, to cancel part of the joint collateral security right established on the land No. 1 out of the instant joint collateral security right, the joint collateral security established on the land No. 2 was cancelled due to the Defendant’s filing an application for cancellation of all of the joint collateral security right established on the land No. 1 and 2 in violation of the purport of delegation. Accordingly, the Plaintiff lost the right to receive dividends even as the subrogation of the second joint collateral security right during the real estate auction procedure implemented on the land No. 2. Accordingly, the Defendant should pay the Plaintiff the amount equivalent to the maximum debt amount of the said joint collateral security right, which is the damages incurred by the Plaintiff by cancelling the joint collateral security right on the land No. 2, which was delegated by the Plaintiff.

B. Determination

On the other hand, in a case where a right to collateral security has been established as to a part of a land, it is reasonable to view that the right to collateral security has an effect as to a part of the share over the entire land. Accordingly, even in a case where one land has been divided, it shall be deemed that the right to collateral security still has an effect on a certain share over each divided land. However, this is recognized to prevent the holder of the right to collateral security before and after the division from being disadvantaged by changing the effect of the right to collateral security before and after the division due to the contingency of the land division, and it cannot be deemed that such legal principles apply to the co-owners of the land. If recognition is made, the co-owners of the share established as the right to collateral security would result in an excess of the limit established on their own ownership by the co-owners of the right to share ownership, due to the contingency of the right to share security, which is the right to share ownership established as the right to share. Therefore, as the co-owners of the share established as the right to share security has been divided, in relation to the other co-owners, who still have an effect on their own share.

In this case, D2 and D3-2, at the time of the Plaintiff’s purchase of C’s shares out of the land before subdivision from C, was set up only for the share purchased by the Plaintiff, and thereafter, it was divided into the first and second land according to the co-owned property partition agreement between the Plaintiff and C1.

Even if the right to collateral security established only with respect to the shares of the plaintiff was still effective as to the shares of the above Category C in the land 2, which is owned by other co-owners, the plaintiff is still liable for the above shares of the above Category C in relation to the land 1. Thus, the plaintiff is not entitled to claim compensation or damages for the reason that the above joint collateral security was subrogated for the above joint collateral security, and therefore, the plaintiff cannot claim the right of the joint collateral security as the person who has subrogated for the second joint collateral security in the procedure of voluntary auction for the real estate 2, which is owned by C1. Therefore, even if the defendant cancelled all of the joint collateral security in violation of the purport of delegation by the plaintiff, as alleged by the plaintiff, it cannot be deemed that the damage was caused to the plaintiff. Accordingly, the plaintiff's above claim does not require further review.

3. Conclusion

If so, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair with different conclusions, and it is revoked and dismissed.

The presiding judge, judges and assistant judges;

Judges Choi Young-chul

Judges Kim Gin-ju