Plaintiff (Attorney Song-con, Counsel for the plaintiff-appellant)

Busan Savings Bank and three others (Attorney Park Jong-sung, Counsel for the plaintiff-appellant)

March 9, 2017

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

In relation to the auction cases of real estate in Suwon District Court's Ansan-si 2013 3898, 2013 2013 4266, 2013 77 777 1013 20124 2013 2013 31297 1297 2013 14928 14928 2013 2013 2016 2016 253,039 253,0353 203, 17,268 493 165,000 165,07 37 208 207 207 375,207 208 375,207 207 37,375, etc., the amount of dividends against Defendant Busan District Court's 2016

1. Facts of recognition;

(a) Establishment of a collateral security right;

(1) On March 9, 2009, the Defendant Forest Savings Bank (hereinafter “Defendant Forest Savings Bank”) agreed to grant a loan of KRW 3 billion at 9% per annum and at 19% per annum for overdue interest to the Yangyang Housing Co., Ltd. (hereinafter “Mayang Housing”). As security for the above bonds, etc., the Defendant Forest Savings Bank extended the maximum debt amount of KRW 6.5 billion on February 26, 2009 to the entire real estate indicated in the attached property owned by Nonparty 1 and Nonparty 2 and Yangyang Housing as security for the foregoing bonds, etc., and changed the maximum debt amount of KRW 3.9 billion to KRW 3.9 billion on October 19, 2009 (hereinafter “the changed collateral security right”) (hereinafter “mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-backed claim”).

(2) On October 14, 2009, the Plaintiff: (a) obtained the establishment of the right to collateral security of KRW 910 million with respect to real estate No. 1 and 9,000,000 (hereinafter the above right to collateral security (hereinafter the “Plaintiff”); and (b) obtained the right to collateral security of KRW 9,10,000,000 with respect to real estate indicated on the attached real estate owned by Nonparty 1 as the secured claim

(3) On May 19, 2010, Defendant Forest Savings Bank was granted a loan of KRW 500 million per annum from KRW 10 million per annum to 12% per annum for the housing construction and overdue interest period, and on May 18, 2010, upon setting the maximum debt amount of KRW 650 million with respect to the total amount of real estate indicated in the attached property, among the real estate indicated in the attached Table, the mortgage was set up on May 18, 201 (hereinafter the above collateral is referred to as “mortgage 2”; and the above claim is referred to as “mortgage 2”).

(4) On December 23, 2010, the Defendant Forest Savings Bank extended a loan of KRW 400 million per annum from 10% to 12% per annum according to the overdue interest period and at 10% per annum on December 22, 2010, and received a right to collateral security (hereinafter the above collateral security was referred to as “mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-

(b) Appropriation of performance;

(1) In the event △△△△, a joint and several surety for a loan for the Housing Construction, was sold to the Suyang-gu District Court of Suyang-gu ( Address 1 omitted) No. 201032, Jun. 17, 2014, Defendant Busan District Court: (a) received dividends of KRW 57,069,867 as a provisional attachment authority and appropriated the principal amount of the mortgage claim No. 2 to KRW 500,000,000; and (b) received dividends of KRW 57,069,867 as a joint and several surety for

(2) Since then, Defendant Busan District Court received an order for payment of KRW 150,465,410 among the loans for the housing construction and overdue interest thereon as the claimed amount, and made it an executive title on June 18, 2014, the title of the land expropriation compensation for the land expropriation compensation for the Mayang-gu ( Address 2 omitted) in Ansan-si ( Address 2 omitted) and appropriated KRW 152,120,463 out of the total amount of the mortgage claim No. 2 as the principal of the mortgage claim.

(3) The Defendant Forest Savings Bank applied for the commencement of voluntary auction on the real estate No. 14 to 18 out of the real estate indicated in the attached Form No. 1630, in Suwon District Court Anyang-do, 2012, and around 1630, and the said court rendered a decision to commence voluntary auction on November 9, 2012. Of the above real estate, the Defendant Forest Savings Bank withdrawn the auction on July 18, 2014 and continued the auction on the real estate No. 14, 16, and 18. On November 17, 2014, the Defendant Forest Savings Bank received dividends of KRW 2,349,438,592 as dividends and added the total amount of KRW 2,354,487,417 to the total amount of the principal claim No. 300,00,00 won.

(4) On April 21, 2015, 15, 15, 17, out of the indicated real estate in the attached Form, for which a request for auction has been withdrawn, sold KRW 2.1 billion, and subsequently, on April 21, 2015, Defendant Busan Savings Bank appropriated the payment of the remainder of all the remainder of the claims, 1, 2, and 3, 2, and 1,2, and 3, 2, and 1,614, 876, 677, and 1,67, and 1,67, 1,00 interest interest interest on the claims of Defendant Busan Savings Bank, and 2,3, and 2, and 3,000 from among the real estate indicated in the attached Form, the registration thereof was cancelled.

C. Commencement of the instant auction procedure and transfer of the Defendants’ right to collateral security

(1) The Plaintiff filed an application for the commencement of voluntary auction of the real estate No. 1 from No. 2013 to 3898 of this Court with respect to the real estate No. 9 of the attached real estate indicated on the ground of the Plaintiff’s right to collateral security, and this Court rendered a decision to commence the auction of the real estate around March 2013. Around June 2013, Defendant Down Savings Bank filed an application for the commencement of voluntary auction of the real estate with regard to the real estate No. 1 to 13 of the attached real estate indicated on the attached real estate No. 1 to 2013 (No. 2013 to 7777 of this Court), and filed an application for the commencement of voluntary auction of the real estate with regard to the same real estate (No. 2013 to 129777 of this Court), all of which were joined in the case No. 3898 of this Court (hereinafter collectively referred to as “instant auction procedure”).

(2) On January 22, 2016, in the process of the instant auction procedure, Defendant Busan Savings Bank entered into a contract on the transfer and takeover of bonds (hereinafter “instant contract on the transfer and takeover of bonds”) with Defendant 2 the total amount of remaining bonds out of the mortgage-backed claims No. 1,611,349,521, and with the transfer amount of KRW 600 million (hereinafter “instant contract on the transfer and takeover of bonds”). On April 11, 2016, Defendant 2 completed the registration of the transfer of the registration of the creation of a neighboring mortgage on the attached real estate No. 1 to 9 on April 11, 2016 among the real estate indicated in the attached property.

(3) On April 11, 2016, Defendant Co., Ltd. Co., Ltd. (hereinafter “Defendant Co., Ltd.”) created a pledge right on the right to collateral security (2) and completed its registration with regard to the right to collateral security (2).

(4) On April 11, 2016, Defendant 4 acquired KRW 165,00,000 from Defendant Co., Ltd.’s Co., Ltd.’s Co., Ltd.’s loan and received KRW 165,00,000 out of the bonds

(d) Preparation of distribution schedule;

In the instant auction procedure, on October 26, 2016, based on the payment agreement submitted by the Defendants pursuant to the agreement, the instant court distributed KRW 313,415,479 to the Defendant Busan Savings Bank; KRW 253,039,353 to Defendant B; KRW 17,268,493 to Defendant CM deposit funds; KRW 165,00,000 to Defendant 4; and the Plaintiff prepared a distribution schedule with the content of excluding dividends (hereinafter “instant distribution schedule”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 13, Eul evidence Nos. 1 through 21, 28, and the purport of the whole pleadings

2. The plaintiff's assertion

A. On March 17, 2014, the Defendant Down Savings Bank received dividends from the auction case No. 2013, 20032, the auction case No. 2013, Dong-dong △△△△△△, which was owned by Nonparty 2, as a person holding a provisional attachment; on June 18, 2014, upon receipt of an order to pay as the title of execution, the amount received out of the land expropriation of the land No. 2014, 2014, 300, 14, 14, 2014, 14, 14, 14, 16, 18, 18, 2012, 16, 2012, 16, 16, 18, 2017, 17, 2017, 200, 300,0000,0000,000,0000,000.

B. ① The transfer of the right to collateral security and the right to collateral security between the Defendants is not effective on the ground that the transfer of the right to collateral security and the right to collateral security between the Defendants was the most transfer, the claim was not specified, or that the transfer of the right to collateral security was a formal transfer of the right to collateral security, and ② the transfer of the right to collateral security in the attached real estate indicated in the attached real estate was not registered and the right to collateral security was completed on April 11, 2016 by the conclusive claim transfer contract as of April 11, 2016. Thus, the instant claim transfer and the right to collateral security are not effective due to the lack of the transfer of the right to collateral security and the transfer of the right to collateral

3. Determination

A. Judgment on the plaintiff's first argument

(1) Relevant legal principles

A creditor and a mortgagee may not be deemed to have obtained a preferential repayment of the remainder of the secured debt within the scope of the maximum debt amount, unless the creditor and the mortgagee have received a repayment of the secured debt in an auction procedure on the jointly mortgaged object, but even if the debtor has obtained a partial satisfaction by arbitrarily selling the secured debt with the payment of the secured debt, it cannot be deemed that the mortgagee has obtained a preferential repayment of the secured debt within the scope of the maximum debt amount. Even if the joint mortgagee and the joint mortgagee have received a partial voluntary repayment of the secured debt with the purchase price of the jointly mortgaged object, the amount of the secured debt shall not be appropriated preferentially for the secured debt with the preferential repayment right, but shall be appropriated for the full repayment of the debt to the debtor by the joint mortgagee in accordance with the general legal principles of appropriation of performance. With respect to the specific repayment of the debt performed by the debtor, the agreement between the creditor and the debtor as to appropriation of performance or the designation of the debtor, and without any agreement or designation thereon, it shall be appropriated in the order of each expense, interest and principal (see, e.g., Supreme Court Decision 20103Da.

(2) Determination

In light of the above legal principles, in this case, where part of the obligation to be extinguished is performed outside the auction procedure of this case, it is not naturally necessary to set forth the obligation to be extinguished in accordance with the general legal principles of satisfaction of obligation, and it is not necessary to preferentially repay the obligation arising out of the establishment of senior collateral security. The payment of obligation by the defendant Mountainous Savings Bank is due to the sale of real estate which is not related to the plaintiff's right to collateral security. The payment of obligation by the defendant Mountainous Savings Bank is insufficient to extinguish the entire obligation with the money repaid by Mountainous Savings Bank No. 2 and 3, and the payment of the whole amount of the debt and the overdue interest of the non-mortgage No. 7, 8, 9, 12, 13, 16, and 17 cannot be seen as having been made in accordance with the above legal principles. Furthermore, the defendants' assertion that the defendant Mountainous Savings Bank made an implied repayment of obligation under the premise that the repayment of obligation should be made lawfully between the defendant Mountainous Savings Bank and the housing construction company.

B. Judgment on the second argument by the Plaintiff

(1) First of all, 2.B. (1) With regard to the assertion, there is no evidence to acknowledge that the assignment of a right to collateral security, assignment of a right to collateral security, establishment of a pledge, and partial transfer of a right to collateral security made between the Defendants was made falsely, or that it was a formal assignment of a right to collateral.

(2) Next, as to the assertion on February 2, 200-B, the fact that Defendant Busan Savings Bank entered into the instant bonds transfer and takeover contract with Defendant 2 on January 22, 2016 is as seen earlier. According to the evidence No. 13 as to the real estate indicated in the annex No. 13, the mortgage transfer from Defendant Busan Savings Bank to Defendant 2 on April 11, 2016 (hereinafter “instant mortgage transfer registration”) is acknowledged as the ground for registration on April 11, 2016.

However, the registration of real estate is valid even if the current state of true rights is disclosed without reflecting the process that led to the registration or the quantity thereof as it is. Thus, when a registered titleholder is transferred a mortgage from a former mortgagee for another reason, he/she is lawfully transferred for another reason without resorting to the grounds for registration stated in the register, and only asserts the form or process of the act of reason for registration, and it cannot be said that the burden of presumption of registration is broken down. In such a case, the disputing party must assert and prove that the registration of transfer of mortgage by the registered titleholder was made against the intent of the former registered titleholder, and that the registration of transfer is null and void (see Supreme Court Decision 2001Da23195, Aug. 21, 2001, etc.).

In light of the above legal principles, Defendant 2 entered into the instant contract for the transfer of claim on a date different from that indicated in the grounds for registration of the instant real estate registry, and thus, it cannot be immediately null and void as it is without any reason. The Plaintiff’s assertion that the instant registration of the transfer of collateral security was null and void as it did not cause the instant registration of the transfer of collateral security. There is no evidence to deem that the instant registration of the transfer of collateral security was null and void. Rather, according to each of the evidence No. 23 and No. 25, there is no evidence to deem that the instant registration of the transfer of collateral security was null and void. Rather, according to each of the evidence No. 23 and No. 25, Defendant Busan Savings Bank and Defendant 2 concluded an additional agreement on March 7, 2016, and completed the payment of the transfer of collateral security on April 11, 2016, and on the same day, it is recognized that the instant registration of the transfer of collateral security was consistent with the substantive relationship.

Meanwhile, in the event that a mortgagee files an application for auction on the ground of the non-performance of the secured obligation, the amount of the secured obligation of the right to collateral security becomes final and conclusive (see Supreme Court Decision 97Da25521, Dec. 9, 197, etc.). As seen earlier, the Defendant Busan Savings Bank applied for voluntary auction of the real estate indicated in the attached Table No. 1 through 13 around June 2013, Defendant Busan Savings Bank became final and conclusive. According to the evidence No. 20, according to the record No. 20, Defendant Busan Savings Bank and Defendant 2, when entering into the instant contract for mortgage transfer and takeover, indicate the secured right subject to the transfer under Article 8 as mortgage, and the amount of the claim subject to the transfer and takeover under Article 2 as KRW 1,611,349,521, etc., it is reasonable to view the above Defendants to have agreed to transfer the secured right in the real estate register, which is a real right in the real estate register.

(3) Therefore, the Plaintiff’s assertion on the premise that the assignment of claims and the registration of collateral security, and the registration of pledge based thereon, and the partial transfer agreement, are null and void is without merit.

4. Conclusion

The Plaintiff’s claim against the Defendants in this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Han Sung-soo (Presiding Judge)