[1] In a case where the entire secured claim is transferred after the secured claim of the joint collateral is established, whether multiple secured claims in the relationship of joint collateral security should be transferred as a matter of course (affirmative), and the method of resolving the relationship of joint collateral security

[2] Where there is a subordinated mortgagee prior to the agreement on the utilization of invalid establishment registration of a mortgage, whether the utilization agreement is valid in relation to the subordinate mortgagee (negative)

[3] The case holding that in a case where the right to collateral security established on the land Nos. 1, 2, and 3 was established for securing the same claim, but the right to collateral security (the right to collateral security (the right to collateral security) was established on the land Nos. 1, 2, and 3 and the registration of collateral security (the right to collateral security) was completed on the land No. 3 in the name of Eul et al. as the right to collateral security (the right to collateral security) was established on the land No. 1, 2, and the right to collateral security (the right to collateral security) was transferred to Eul et al. on the ground of contract transfer on the land No. 1 and 2, the right to collateral security (the right to collateral security) remains without the right to collateral security (the right to collateral security) on the land No. 1, 2, and the right to collateral security (the right to collateral security) is invalid even if the right to collateral security (the right to collateral security) was transferred to Byung et al.)

[1] Since the right to collateral security established on the multiple objects of joint collateral security, which constitute a joint collateral security, is the same as the right to collateral security, the right to collateral security should be transferred as a matter of course upon the assignment of all the secured claims after the right to collateral security is established. Since the joint collateral security relationship is not resolved due to such joint collateral security relationship, registration of transfer cannot be made only on part of the joint collateral security unless the joint collateral security relationship is resolved. In this case, registration of change of the right to collateral security with the content of resolving the joint collateral relationship between each real estate under the current Registration of Real Estate Act is not recognized. Therefore, registration of cancellation of the right to collateral security should be made on the ground of partial waiver of the right to collateral security to be excluded from the joint collateral security.

[2] The utilization of null and void establishment registration of a mortgage can be made only when there is no third party who has an interest in the registration prior to the utilization agreement. Thus, if there is a subordinate mortgagee prior to the utilization agreement, the agreement on the utilization of establishment registration of a mortgage has no effect in relation to the subordinate mortgagee, and the said registration is invalid within the scope of the said agreement, which does not conform to the substantive relations.

[3] The case holding that in a case where the right to collateral security was established for securing the same claim on the land of 1, 2 and 3, but the right to collateral security was established for transferring the whole amount of the right to collateral security established on the land of 3 to 2, and the right to collateral security was completed for transferring the right to collateral security established on the land of 1, 2 and 3 in the name of 3, and the right to collateral security established on the land of 1 and 2 was transferred to 3, the right to collateral security established on the land of 1, 2 should also be entirely transferred to 2, and if the right to collateral security established on the land of 3rd as the right to collateral security was transferred to 1, 2 and 3, since the right to collateral security established on the land of 3rd and the right to collateral security was not transferred to 1 and 2, even if the right to collateral security established on the land of 1, 200 were not transferred to 3rd and the right to collateral security still remains effective after the transfer of the right.

[1] Articles 186, 357, 361, 368, and 449 of the Civil Act / [2] Articles 186 and 357 of the Civil Act / [3] Articles 186, 357, 361, 368, and 449 of the Civil Act

[2] Supreme Court Decision 74Da482 delivered on September 10, 1974 (Gong1974, 8048)

Plaintiff (Law Firm Tae, Attorney Lee Young-gu, Counsel for the plaintiff-appellant)

GM Development (Law Firm Accompanying, Attorneys Jeong-hee et al., Counsel for the defendant-appellant)

October 6, 2011

1. As to the case of the auction of real estate (No. 2010 another District Court) in Ulsan District Court, the part of KRW 306,188,072, out of the dividend amount of KRW 6,615,70,180 against the defendant in the distribution schedule prepared by the said court on February 18, 2011, shall be deleted.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

The portion of KRW 306,188,072 out of the dividend amount of KRW 6,615,70,180,180, which was prepared by the above court on February 18, 2011 with respect to the auction of real estate (No. 18272) against the defendant in the distribution schedule prepared by the Ulsan District Court on February 18, 201, shall be deleted, and the amount of dividends to the plaintiff shall be corrected to KRW 16,57,24 to KRW 322,765,316.

1. Basic facts

A. On December 29, 2006, the right to collateral security (hereinafter “the right to collateral security”) with a maximum debt amount of KRW 1.563 billion was established on the non-party company, the mortgagee company, the right to collateral security (hereinafter “the right to collateral security”) and the right to collateral security (hereinafter “the right to collateral security”) with a maximum debt amount of KRW 1.50 million was established on the non-party company, the right to collateral security (hereinafter “the right to collateral security”) and the right to collateral security (hereinafter “the right to collateral security”) with a maximum debt amount of KRW 1.5 billion on the non-party company, the right to collateral security (hereinafter “the right to collateral security”) were established on June 15, 2007 and thereafter the right to collateral security (hereinafter “the second right to collateral security”) was established on the same date on June 15, 2007, 118,118-1,18-2, each of these real property was divided into the right to collateral security (hereinafter “the right to collateral security”).

B. After that, on December 3, 2007, the returned Saemaul Association established the secured debt amount of the first collateral mortgage, which was created by joint collateral, with the land of 118,00,000,000,000 won in return-do, 118-2 on the land of 118-1,000,000,000 won, and thereafter, transferred to Nonparty 1 the secured debt amount of the first collateral security to Nonparty 6,00,000 won to Nonparty 2 and 3 respectively, KRW 100,000,000,000 to Nonparty 4,52,000,000 won to Nonparty 6, and KRW 43,000,000 to Nonparty 7, and accordingly, part of the secured debt amount for the land of 118-2,0000,0000 won in the name of Nonparty 1, which became final and conclusive as to each of the above claims.

C. Meanwhile, on December 29, 2006, the non-party company had registered the establishment of a neighboring community center in the name of the non-party company as the non-party company with respect to the non-party company's land 69-1 and 7 parcels on December 29, 2006, and the non-party company completed the registration of the establishment of a new community center in the name of the non-party company in the name of the non-party company. On March 28, 2008, the return community completed the registration of the establishment of a new community center in the name of the non-party company in the name of the non-party company. The non-party 8 (3/5 shares) and the non-party 9 (2/5 shares of the non-party 118, the non-party 8 and the non-party 9 shares in the name of the non-party 2 in the name of each of the non-party 18 and the non-party 9 shares in the above return community.

D. After that, Nonparty 8 and 9 applied for a voluntary auction on the above returned parcel of 69-1 and 7 parcels of 69-1, including the instant right to collateral security, to the Ulsan District Court 2010 other, around 18272, and on September 10, 2010, the Defendant succeeded to each of the instant collateral security claims, including the instant right to collateral security, from Nonparty 8 and 9 on January 12, 2011, and from Nonparty 10, the instant claim secured by the instant right to collateral security, including the instant right to collateral security, was returned to Nonparty 69-1, 70, 71, 72, 73, 77, 77, and 79 land 2, each of the secured claims on the instant right to collateral security, each of which was transferred for each of the final claims.

E. Meanwhile, on January 14, 2011, the Defendant bid on the date of sale of the above auction procedure and became the highest bidder, and thereafter received the decision of permission for sale on January 21, 201 of the same year. Since then, upon the Defendant’s filing of an application for offsetting against the auction proceeds court, the auction court prepared a distribution schedule that distributes the amount of KRW 6,654,737,107 to the Defendant for KRW 6,615,70,180, and KRW 16,57,244 to the Plaintiff as to the payment of the said auction procedure and the date of distribution.

F. The Plaintiff, who was present on the date of the above distribution, raised an objection to the total amount of KRW 306,188,072 of the dividend amount for the part on the land in Busan 118 and 118-1, out of the dividend amount against the Defendant, and filed the instant lawsuit on February 24, 2011, which is within seven days thereafter.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, 6 (including paper numbers; hereinafter the same shall apply), Eul evidence Nos. 1, 4, 5, and 6, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

On December 3, 2007, the Korea Family Association established the secured debt of the first neighborhood mortgage, which is the joint collateral established on each real estate of this case, at KRW 1.5663 billion, and then transferred the secured debt to Nonparty 1 and to Nonparty 6, the first collateral mortgage was finally transferred to Nonparty 1 and Nonparty 6.

Therefore, the first collateral mortgage remaining on the land in mountain 118 and mountain 118-1 is null and void, and both the right to collateral security and the right to collateral security in the name of the defendant are null and void. Thus, the amount of dividends distributed to the defendant in the auction procedure of this case to the defendant 6,615,70,180,180, out of the amount of dividends distributed to the defendant 118, mountain 118-1, and the amount of dividends for the land in mountain 118,072 is unlawful. Thus, the above amount of dividends shall be deleted from KRW 306,18,072, and the distribution schedule shall be corrected to distribute to the plaintiff.

B. Defendant’s assertion

The first time mortgage was established to secure the claim for the purchase price of the non-party company while selling the land in 118,00,000,000,0000,0000,0000,0000,0000,0000,0000,0000,000,0000,000,000,000,000,000,000,000,000,000,000,000

On December 3, 2007, the Korea War Veterans Association received KRW 1.563 billion from Nonparty 1 and six other persons, and transferred the first collateral mortgage established on the land in Busan 118-2, which was returned, to Nonparty 1 and other six persons. The first collateral mortgage established on the land in Busan 118 and 118-1 was maintained to secure the remainder of KRW 2.5 billion against the non-party company on March 25, 2008, while the first collateral mortgage established on the land in Busan 118 and 118-1 was maintained to secure the purchase price claim against the non-party company, the non-party 8 and 9 received KRW 2.5 billion from the non-party 8 and transferred the first collateral mortgage established on each of the above land to the non-party 9.

Therefore, the first collateral mortgage remaining on the land in mountain 118 and mountain 118-1 is still valid as it aims to secure the above 2.5 billion won’s claim for the purchase price, and each of the instant collateral security and the Defendant’s right to collateral security in sequence based on it is also valid. Therefore, the distribution of dividends to the Defendant during the instant auction procedure is all lawful.

3. Determination

A. Relevant legal principles

Since the right to collateral security is not transferred separately from the right to collateral security, the transfer of the right to collateral security is always conducted by combining the transfer of the right to collateral security and the transfer of the right to collateral security. As such, the transfer of the right to collateral security is governed by the provisions on change of real right in Article 186 of the Civil Act and the provisions on the transfer of assignment of claims in Articles 449 through 452 of the Civil Act, so even in the transfer of the right to collateral security, there is a real right agreement and registration aimed at transferring the right to collateral in accordance with the general principle of change of real right (see Supreme Court Decision 2002Da15412, 15429, Jun. 10, 2005). However, since the right to collateral security established on the multiple objects of collateral security, which constitute the joint collateral security, is a common right to collateral security, if the right to collateral security becomes established after the right to collateral security becomes final, the right to collateral security should also be entirely transferred to the joint collateral security relationship with each joint collateral security.

On the other hand, the usefulness of the establishment registration of a new mortgage is possible only if there is no third party who has an interest in the registration prior to the utilization agreement. Thus, if there is a subordinate mortgagee prior to the utilization agreement, the agreement on the utilization of the establishment registration of a new mortgage has no effect in relation to the subordinate mortgagee, and the said registration is invalid within the scope of the said agreement, which does not fit the substantive relation (see Supreme Court Decision 74Da482, Sept. 10, 1974, etc.).

B. Determination

1) As to the instant case, if the first collateral mortgage created on each of the instant real estates is a joint collateral security established to secure 1.53 billion won with the maximum debt amount, which is the same claim, the first collateral security right, and the return Saemaul community council, which is the first collateral security right, around December 3, 2007, established the claim secured on the first collateral security right as KRW 1.563 billion with the non-party 1 and six, the total debt amount shall be transferred to the non-party 1 and the non-party 1, who is the debtor at that time, consented to the assignment of the above claim. Accordingly, the non-party 1, which is the joint collateral security right, should have been returned to the non-party 1,58-1, which is the joint collateral security right to the non-party 1, which is the joint collateral security right to the non-party 1, which is the joint collateral security right to the non-party 1,68-2, which is the joint collateral security right to the non-party 1, which was returned.

However, as seen in the instant case, insofar as the first collateral mortgage, which was established on the land of 118-2 and 118-1 in the return relation with the land of 118-2 and the first collateral mortgage, should have been transferred to the non-party 1 and the non-party 6, it would be contrary to the legal principles of the joint collateral security, and even if the establishment registration remains without cancellation of the collateral security, it would be the invalid collateral security that does not exist due to the assignment of credit. Therefore, even if the non-party 8 and the non-party 9 transferred the first collateral mortgage which was established on the land of 118 and 118-1, which was returned to the non-party 8 and 9 after the return, it is merely the transfer of the invalid collateral security, and eventually, it would be null and void not only in the instant case of the non-party 8 and 9, but also in the name of the defendant who succeeded to it.

2) Meanwhile, as alleged by the Defendant, the returned Saemaeul Association, around December 3, 2007, transferred the above right to collateral security to Nonparty 1 and 6, and only the first collateral security claim established on the land 118-2 which was returned between the non-party company and the non-party 1 and the non-party 6 at the time of transferring the above right to collateral security to the non-party 1 and the non-party 18-1, the first collateral security right established on the land 118 and 118-1, which was established on the non-party 1 to continue to maintain the sale deposit claim against the non-party 1 for the purpose of securing the right to collateral security, as seen earlier, the return interest and the first collateral security right was transferred to the non-party 1 and the non-party 1 to the non-party 1 and the non-party 1 to whom the above right to collateral security right was transferred to the non-party 1 and the non-party 1 were not effective within the scope of each of the above rights established in the non-party 1 and the plaintiff 181.

C. Sub-committee

Therefore, at the time of the application for auction of this case, a series of procedures and the decision on permission for sale, including the decision on commencing the auction of the land 118, 118-1, which was null and void, based on the instant mortgage at the time of the application for auction of this case, are all null and void. Therefore, the amount of dividends under the distribution schedule against the Defendant during the auction procedure of this case 6,615,70,180,180, the amount of dividends for the land 118, 118-1, 306, 188,072 shall be deleted illegally, and this part of the Plaintiff’s assertion is with merit.

However, the plaintiff also seeks to delete the amount of dividends to the defendant, and further distribute the said dividends to himself. The auction procedure should be valid in cases where the amount of dividends deleted and deleted in a lawsuit of demurrer against distribution is cultivated to other creditors and other creditors. As seen above, the right to collateral security in this case is null and void in violation of the legal principles as to joint collateral of common collateral, and as long as the auction procedure of this case on the land of 118 and 118-1, which was implemented based on the right to collateral security in this case null and void, is also deemed null and void, the auction procedure or distribution procedure of this case on the land of 118 and 118-1, which was returned at the time of return cannot be maintained any longer. Thus, the plaintiff's assertion for the above demand for distribution cannot be accepted.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Choi Ho-ho (Presiding Judge)