Whether subordinate mortgagee is a third acquisitor who can exercise the right to claim the extinction of a mortgage under Article 364 of the Civil Act (negative)

Article 364 of the Civil Act provides, “The third party who has acquired the ownership of a superficies or chonsegwon on the mortgaged immovable may make a claim for the extinguishment of the mortgage by repaying the debt secured by the mortgaged to the mortgagee and claiming the extinguishment of the mortgage.” Therefore, the third party who has acquired the right pursuant to the provisions of Article 364 of the Civil Act with respect to the mortgaged immovable may make a claim for the extinction of the mortgaged immovable within the scope of the maximum debt amount established after the debt is determined. However, the person who has acquired the mortgaged mortgage with respect to the mortgaged immovable is a third party who is able to exercise the right provided for in Article 364 of the Civil Act, and thus, the repayment of the debt established after the debt is determined cannot be considered as the repayment by the third party who has interests as provided for in Article 469 of the Civil Act.

Articles 364 and 469 of the Civil Act

Supreme Court Decision 71Da26 delivered on April 6, 1971 (No. 19-1, 320) Supreme Court Decision 2002Da7176 Delivered on May 24, 2002 (Gong2002Ha, 1492)

Plaintiff (Attorney Lee Jae-sung, Counsel for plaintiff-appellant)

Defendant (Attorney Shin-soo et al., Counsel for defendant-appellant)

Chuncheon District Court Decision 2004Na1725 delivered on January 26, 2005

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

The grounds of appeal are examined.

Article 364 of the Civil Act provides, “The third party who has acquired the ownership of a superficies or chonsegwon on the mortgaged immovable may make a claim for the extinguishment of the mortgage by discharging the debt secured by the mortgaged to the mortgagee.” Therefore, the third party who has acquired the right under Article 364 of the Civil Act with respect to the mortgaged immovable may make a claim for the extinguishment of the mortgaged immovable within the scope of the maximum debt amount established after the debt is determined (see Supreme Court Decisions 71Da26, Apr. 6, 1971; 2002Da7176, May 24, 2002, etc.). However, the third party who acquired the mortgaged immovable property does not constitute the third party who is entitled to exercise the right under Article 364 of the Civil Act. Accordingly, the repayment of the debt secured by the mortgagee which became final and conclusive after the debt secured by the mortgagee cannot be considered as a valid interest of the third party under Article 469 of the Civil Act.

The court below held that the plaintiff, a subordinate mortgagee, could claim the extinction of the right to collateral security of this case by depositing the repayment of the maximum debt amount and auction expenses of the right to collateral security of this case to the defendant, who is a senior mortgagee, on the premise that the plaintiff is a third acquisitor as stipulated in Article 364 of the Civil Act. However, the court below erred in the misapprehension of legal principles as to the scope of third acquisitor as stipulated in Article 364 of the Civil Act or the scope of repayment by a third party as stipulated in Article 469 of the Civil Act, which affected the conclusion of

Therefore, without examining the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)