[1] Details and scope of secured debt secured by a collateral security

[2] In a case where a title trustee Gap disposed of the entrusted real estate by means of completing the establishment registration of a collateral to Eul et al., the case holding that in a case where Gap and Eul et al., a mortgagee Eul and creditor Eul et al, agreed to designate the secured debt secured by the collateral and the debtor Eul et al. as the debt to Eul et al., but the debtor et al. were stated in the written collateral security agreement as the title truster Byung et al., but it is only stated in the written collateral security agreement as the debtor et al. as the title truster Byung et al., and it is sufficient to view the secured debt secured by the said mortgage agreement as the debtor et al., and there is sufficient ground to view the secured debt secured by the collateral security agreement as Eul et al.

[1] Articles 105, 357, and 360 of the Civil Act / [2] Articles 105, 357, and 360 of the Civil Act

[1] Supreme Court Decision 87Meu2008 delivered on December 8, 1987 (Gong1988, 276) Supreme Court Decision 97Da3205 delivered on November 14, 1997 (Gong1997Ha, 3828 delivered on June 25, 199) (Gong197Ha, 3828 delivered on June 25, 199)

Plaintiff

Defendant 1 and one other

Daegu District Court Decision 2009Na4587 Decided January 21, 2010

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

1. The content and scope of the secured obligation secured by the right to collateral security is determined by a contract between the mortgagee and the right to collateral security (see Supreme Court Decisions 87Da2008, Dec. 8, 1987; 97Da32055, Nov. 14, 1997; 97Da32055, Nov. 14, 1997). In a case where the agreement between the mortgagee and the right to collateral security was reached on the designation of the secured obligation secured by the right to collateral security and the obligor, even though the actual obligor and the obligor are different on the document establishing the right to collateral security or on the registry, the right to collateral security established by the right to collateral security shall be deemed valid, and the obligation to be secured by the right to collateral security shall be deemed as the actual obligor, not the obligation of the obligor recorded on the document establishing the right to collateral security or on the registry (see Supreme Court Decision 97Da32055, Nov. 14, 1997);

2. The court below determined that, when Nonparty 1, a title trustee, disposed of the entrusted real estate by means of completing the registration of the establishment of the instant collateral against the Defendants, the Defendants would not acquire the collateral in light of the nature of the collateral security, even if Nonparty 2 and Nonparty 3 were to bear the Defendants’ assertion against the Defendants, so long as the registration of the establishment of the instant collateral security was completed without Nonparty 1’s consent, the Defendants would not acquire the collateral security in light of the nature of the collateral security.

3. However, we cannot agree with the above determination by the court below for the following reasons.

First of all, the disposal act of the trustee against the third party is, in principle, valid, so there is no relation with the consent of the title truster 2 and the loss and invalidity of the registration of the establishment of the mortgage of this case and the specification of the secured debt.

Then, according to the records, the defendants submitted to the non-party 2 and the non-party 3 a document evidencing the existence of a claim against the non-party 2 and the non-party 3 in 1998, and the defendant 2 had a claim amounting to KRW 120 million, and the non-party 1 had a claim amounting to KRW 96 million with the consent of the non-party 3 and the implied consent of the non-party 2. However, the non-party 2 and the non-party 3 did not have a claim amounting to the non-party 1 in title trust (the non-party 2 and the non-party 3 are merely the debtor's non-party 1) by asserting that "the non-party 2 and the non-party 3 had a claim amounting to the non-party 3 in the name of the non-party 2 and the non-party 3, who had not rejected the judgment of the court of first instance, that the non-party 1 witness established the non-party 3's testimony under the plaintiff 1's husband's name.

In accordance with the aforementioned legal principles, the contents of the pleading, and the result of the examination of evidence as seen earlier, when entering into a mortgage contract with Nonparty 1, a mortgagee, and the Defendants, a creditor of the right to collateral security, they agreed to designate the secured debt secured by the right to collateral security as the above obligation against the Defendants of Nonparty 2 and Nonparty 3. However, since the obligor under the document establishing the right to collateral security was recorded as the owner, not Nonparty 2 and Nonparty 3, but as the obligor was registered as the owner at the time, there is sufficient room to view the secured obligation based on the above mortgage contract as the collateral security agreement or the document establishing the right to collateral security, and it is also valid for Nonparty 2 and Nonparty 3, a debtor registered as the owner at the time.

Therefore, the lower court determined otherwise after determining the existence and scope of the Defendants’ claims against Nonparty 2 and Nonparty 3, and accordingly, determined the Plaintiff’s claim for cancellation of the instant case. In so doing, the lower court erred by misapprehending the legal doctrine on the appendant nature of the right to collateral security or failing to exhaust all necessary deliberations, and it is obvious that such illegality has influenced the judgment. The allegation in the grounds of appeal on this point has merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)