In the event that several persons paid a part of the secured obligation on behalf of the person liable for the payment of the amount of the secured obligation on behalf of the person liable for the payment on behalf of the person liable for the payment on behalf of the person liable for the payment on behalf of the person liable for the payment on behalf of the person liable for the payment on behalf of the person liable for payment on behalf of the person liable for payment

Articles 278, 357, 481, 482(1), and 483(1) of the Civil Act

Supreme Court Decision 2000Da37319 Decided January 19, 2001 (Gong2001Sang, 511) Supreme Court Decision 2011Da9013 Decided June 10, 201 (Gong2011Ha, 1385)

Plaintiff (Attorney White-ho, Counsel for defendant-appellant)

Defendant 1 and one other

Changwon District Court Decision 2012Na3757 decided February 14, 2013

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

The grounds of appeal are examined.

1. The court below rejected the plaintiff's assertion that the amount of distribution made by the plaintiff et al. should be calculated based on the amount calculated by adding delay damages at the rate of 17.6%, which is the principal amount paid by the plaintiff et al., to the 122,739,735 won, which is the principal amount subrogated by the plaintiff et al., for the plaintiff et al., and the 122,739,735 won, which is the principal amount subrogated by the plaintiff et al., but is merely the damages for delay pursuant to the agreement between the plaintiff et al. and the non-party 1, the debtor et al., the mortgagee et al., the secured claim of the right to indemnity and the right to subrogation of the plaintiff et al., the debtor et al., the secured claim of the right to subrogation of this case concerning the loan of this case, on the ground that the amount of the plaintiff et al., at least the amount of subrogation should be calculated on the principal amount paid by subrogation

2. However, we cannot agree with the judgment of the court below for the following reasons.

A. In a case where a subrogation for a part of a claim has been made, the subrogation shall acquire the previous creditor’s claim and right to collateral in proportion to the value of the performance performed by the subrogation in accordance with Article 483(1) of the Civil Act, and where several persons paid a part of the secured claim by subrogation for the entire amount of the secured claim and paid a supplementary registration of partial transfer of the secured claim after paying the entire amount of the secured claim, the subrogated shall be entitled to complete the entire amount of the secured claim in proportion to the value of the performance performed by the claimant. Therefore, in a case where the former mortgagee and the debtor have been paid a dividend by exercising the right to collateral, if there was an agreement between the former mortgagee and the debtor on delayed payment, the amount of the secured claim shall be distributed in proportion to the amount of the secured claim, which the former mortgagee may receive without subrogation within the scope of the amount of the secured claim. If there was an agreement between the former mortgagee and the debtor, the damages for delay under such agreement shall be included in the amount of dividends distributed by the subrogation (see, e.g., Supreme Court Decisions 2000Da1313

B. According to the reasoning of the judgment below and records, (1) on June 18, 204, the 2000 won was established with respect to each of the real estate of this case from Nonparty 1, etc. on the 1, 2004, and loaned KRW 250,000 won to Nonparty 1; (2) on February 4, 2010, the 122,739,736 won ( principal 105,761,250 + interest 15,783 won + interest 15,783 won + interest 1,32,70,703 won + interest 25, 122,739,735 won (the principal 105,761,250 + interest 15,684,737,703 won) on the 2, who was the owner of the above real estate; and (3) on the amount of subrogated by the 2, the 165th amount of interest on the substitute.

Examining these facts in light of the legal principles as seen earlier, since the amount of money which the Maducup, a mortgagee, could have been distributed on the date of distribution if the plaintiff et al. had not been subrogated by the plaintiff et al., was totaled of 261,120,595 won (122,739,736 won + 122,739,735 won + 15,641,124 won + the principal of the loan subrogated by the plaintiff et al., the date of subrogation, or from February 4, 2010 to July 6, 201, the date of payment from February 10, 201 to July 6, 201, the amount of damages for delay pursuant to the agreement between the plaintiff et al. and the non-party 1, the plaintiff et al. and the defendant 1, who made the subrogation, may receive dividends in preference to subordinate creditors' share of the amount subrogated by the plaintiff et al.

C. Nevertheless, the lower court determined that the instant distribution schedule prepared by the auction court was justifiable, on the ground that, even if there was an agreement on delay damages between the Plaintiff, a mortgagee, and Nonparty 1, a debtor, could not be included in the amount divided in distribution, even though it was agreed on the part of the mortgagee, the delay damages pursuant to such agreement. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of subrogation by the person liable

3. Therefore, 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.

[Attachment] List of Appointeds: Omitted

Justices Kim Shin (Presiding Justice)