2019Da222041 Undue gains

Co., Ltd.

[Plaintiff-Appellant] LbnB Partners

[Defendant-Appellee] Plaintiff 1 and 2 others

National Agricultural Cooperative Federation

Seoul Central District Court Decision 2018Na32738 Decided February 13, 2019

October 15, 2020

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case summary

The reasoning of the lower judgment and the record reveal the following facts.

A. On December 23, 2004, in order to obtain a loan, the Nonparty: (a) registered the establishment of a mortgage of KRW 70 million and KRW 580 million with respect to the real estate listed in the attached list 1 and 2 of the lower judgment (hereinafter referred to as “real estate 1 and KRW 2”) owned by the Nonparty to the National Federation of Fisheries Cooperatives (hereinafter referred to as the “NF”) on December 23, 2004; (b) obtained a guarantee of guarantee of KRW 423 million with respect to the amount guaranteed by the Defendant to provide it to NFFC; and (c) obtained a loan of KRW 470,000,000 from NFC (hereinafter referred to as “loan 1”). The Nonparty received a loan from NFF to obtain a guarantee of guarantee of collateral security and guarantee of collateral security on December 30, 2004.

On December 9, 2008, the non-party entered into a mortgage agreement with NFFF and the non-party to secure all of the obligations owed to NFFF in the future due to credit transactions, etc., and registered the creation of a neighboring mortgage (hereinafter referred to as the "second-class mortgage"), which is equivalent to the maximum debt amount of KRW 650 million with respect to the real estate listed in [Attachment 3-8] of the judgment below, which is owned by the non-party, to NFC (hereinafter referred to as the "real estate No. 3-8"), which is the non-party. The non-party was additionally granted from NFFFF on December 16, 201 (hereinafter referred to as the "second-class loan").

B. On March 9, 2012, the Plaintiff purchased real estate from the Nonparty and completed the registration of ownership transfer on March 19, 2012.

C. From April 3, 2012, the Nonparty did not pay interest on the second loan from August 9, 2012 with respect to the first loan, and from August 24, 2012, NFC applied for a voluntary auction based on the second collateral security (hereinafter referred to as “instant auction”) around 6906, around August 28, 2012, with respect to the third-3-8 real estate on August 24, 2012. The claimed amount was KRW 876 million in total, including the balance of the first loan and KRW 2-50 million in total.

On August 24, 2012, the Defendant repaid to NFFC KRW 342,97,237 out of the loan No. 1 in accordance with its guarantee agreement, and on September 18, 2012, as to the right to collateral security, which caused KRW 580,000,000 of the maximum debt amount among the first right to collateral security,

The supplementary registration of the relocation of part of the defendant was made.

On November 19, 2012, in order to withdraw the application for auction of the instant case, the Plaintiff paid to NFFC the total of KRW 551,168,720 in 18,805,503 in interest on the first loan, KRW 525,068,491 in interest on the second loan, KRW 525,06 in interest on the second loan, and KRW 7,294,726 in expenses for application for auction, and remitted KRW 150,000 to the Defendant at the request of NFFC. On November 19, 2012.

D. Meanwhile, on September 20, 2012, at the request of the National Bank of Korea, Co., Ltd., the mortgagee of the first and second real estate, the auction procedure was commenced on September 20, 2012 by Daegu District Court racing support 2012, 5533. At the auction procedure, the Defendant submitted a claim statement stating KRW 445,526,188, which is the total amount of the claim for reimbursement against the Nonparty, without excluding KRW 150,000,000 paid from the Plaintiff. Around August 27, 2014, a distribution schedule was prepared to distribute KRW 315,413,80 to the Defendant, and the Defendant received dividends thereafter.

On June 2, 2016, the Defendant deposited the deposited amount with the Nonparty, the Plaintiff, NFFF, and the Korean National Bank, as the non-party, the Plaintiff, and the Korean National Bank. The Defendant deposited KRW 64,80,000,000, which was paid by the Plaintiff on November 19, 2012, and KRW 250,853,086, which was paid by the Plaintiff on November 19, 2012, out of KRW 315,413,80,80, which was paid by the Defendant, as above, to the Defendant’s claim for reimbursement against the non-party, and deposit KRW 64,560,714, which was paid by the Defendant, with the amount of KRW 264,80,00, which was deducted

E. On November 19, 2012, the Plaintiff filed the instant lawsuit seeking the return of unjust enrichment on the ground that the payment of KRW 150 million to the Defendant was not a legal ground.

2. Whether the first loan is included in the secured obligation of the second collateral security (ground of appeal No. 1)

A. In a case where a financial institution and a mortgagee of a mortgage enter into a contract to establish a so-called comprehensive collateral security agreement to secure all obligations arising from a financial institution’s credit transaction, barring any special circumstance, the contract to establish a mortgage is a disposal document, and thus, the content of the contract should be interpreted in accordance with the language and text of the contract, barring any special circumstance. However, in a case where the agreement to establish a mortgage is uniformly printed and used in the same form of a general transaction clause, and it can be recognized that the intent of the parties to the contract was intended to make a specific obligation as a secured obligation, unlike the language and text of the contract, in light of various circumstances, such as the formation and purpose of the contract to establish the mortgage agreement, the amount of the secured obligation, and the mutual relationship between the person who created the mortgage, the debtor, and the creditor, the scope of the obligation to guarantee the performance should be limited according to the intent of the parties (see Supreme Court Decisions 83Meu2159, Jun. 12, 1984; 2001Da

B. For the following reasons, the lower court determined that the Defendant, who partly repaid the first loan, acquired part of the second mortgage by subrogation of the person liable for the repayment, on the ground that the obligation of the first loan is included in the secured obligation of the second mortgage.

(1) At the time of the establishment of the 2-mortgage, the Nonparty was liable for the first loan to NFFC at the time of the establishment of the 2-mortgage. The 2-mortgage was incurred more than three years after the establishment of the 2-mortgage. The 2-mortgage was incurred more than three years after the 2-mortgage was established.

(2) The Plaintiff filed a lawsuit seeking compensation, etc. against NFFC prior to the filing of the instant lawsuit (hereinafter referred to as “related civil lawsuit”) and the Defendant participated in the lawsuit as a supplementary intervenor from NFFC. The cause of the claim is as follows. The secured debt of the second right to collateral security is limited to the second right to loan and does not include the first right to loan. Nevertheless, the Plaintiff paid KRW 168,803,503 in total, including the first right to loan of KRW 150 million and the interest on arrears of KRW 18,805,503 upon the request of NFFFC. The Plaintiff’s repayment of the first right to loan constitutes an agreement on debt repayment, unfair legal act, deception, or deception, and thus seeking compensation for damages arising from unjust enrichment or tort.

The appellate court dismissed all the plaintiff's claim, and the reason is that the first loan is included in the secured debt of the second right to collateral security (Seoul High Court Decision 2015Na21081 Decided December 16, 2015), and the appellate court's judgment was dismissed and finalized as it is (Supreme Court Decision 2016Da201470 Decided April 28, 2016).

(3) It is recognized that the Financial Supervisory Service responded to the Plaintiff’s application for dispute conciliation that “The first loan obligation is not included in the secured obligation of the second collateral security.” However, such fact alone is insufficient to reverse the judgment that the first loan obligation is included in the secured obligation of the second collateral security.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s determination is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the scope of secured debt by collateral security, and the interpretation of contractual terms

3. Whether it is necessary to apply an additional registration at all times in subrogation of the third acquisitor of the guarantor (Article 2).

A. A person who subrogated an obligee under Articles 480 and 481 of the Civil Act may exercise his/her claim and right as to the collateral to the extent that he/she may claim for reimbursement by his/her own right (Article 482(1) of the Civil Act). As to subrogation between the guarantor and the third acquisitor, Article 482(2)1 of the Civil Act provides, “No succeeding witness may subrogate the obligee of the third party who has acquired the right on the leased property or the mortgaged property unless he/she has made an additional entry of the subrogation in advance on the registration of the right to lease on a deposit basis or the mortgage.” This provision aims to protect the third party who acquired the right on the mortgaged property in belief that the mortgage, etc. is extinguished by the guarantor’s reimbursement and has not predicted the third party who acquired the right on the mortgaged property (see Supreme Court Decision 2012Da99341, Mar. 20, 2015). Therefore, if a third party has acquired the right on the immovables for the additional registration of the mortgage, etc. after the guarantor’s reimbursement.

However, the guarantor who acquired the right to the subject real estate by the third party and paid the obligation to the third party shall be deemed to have subrogated even without the additional registration by subrogation. Since the third party who acquired the right to the subject real estate before the guarantor to repay acquired the right with the knowledge of the existence of mortgage, etc. on the register, the third party who acquired the right to the subject real estate before the guarantor reimburses, it is

B. The lower court determined as follows.

On March 19, 2012, the Plaintiff acquired the ownership of the third-class-8 real estate which is the object of the right to collateral security, and the Defendant, the guarantor, repaid KRW 342,997,237 out of the first loan to NFFC on August 24, 2012. Accordingly, even if the Defendant did not make a supplementary registration on the second collateral security, NFC may subrogate the Plaintiff as the third acquisitor.

C. Examining the reasoning of the lower judgment in light of the record, the lower court’s determination that the Defendant, the surety, may subrogate NFF, a creditor, without a supplementary registration by subrogation, against the Plaintiff who acquired the object of the right to collateral security prior to the repayment of the obligation is justifiable in accordance

In such a judgment, contrary to what is alleged in the grounds of appeal, there was no error by misapprehending the legal doctrine regarding subrogation.

4. The remaining grounds of appeal (ground of appeal Nos. 3 and 4)

A. The lower court determined as follows.

The Plaintiff’s payment of KRW 150 million to the Defendant ought to be deemed as the payment for the withdrawal of the instant application for auction and the cancellation of the second right to collateral security after the Plaintiff paid KRW 150 million to the Defendant who acquired part of the second right to collateral security. Inasmuch as the instant application for auction was withdrawn and the second right to collateral security was cancelled, the Plaintiff cannot be deemed as having paid KRW 150 million without any legal cause. B. Examining the reasoning of the lower judgment in light of the record, the lower court did not err by failing to exhaust all necessary deliberations and by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the principle of pleading and unjust enrichment, etc.

Such assertion is not a legitimate ground of appeal against the lower judgment, on the ground that it was only the first time in the final appeal. Furthermore, even if examining records in light of the relevant legal principles, the lower court did not err by misapprehending the legal doctrine on abuse of rights as alleged in the

5. Conclusion

The Plaintiff’s appeal is dismissed as it is without merit, 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.

The presiding Justice shall mobilization by the presiding Justice

Justices Kim Jae-sik in charge

Justices Min Min-young

Justices Noh Tae-ok