In the case of a third party creditor's repayment, the scope of the right to indemnity against the debtor is limited to the interest rate of delay of 5% per annum under the Civil Code.

A person who subrogated a creditor by subrogation of a person effecting performance may exercise his/her right to claim within the scope of his/her own right and the right to secure the claim, and in cases where the plaintiff who is a third party purchaser performs the obligation, the scope of the right to claim against the debtor is limited to the delayed interest rate of 5% per annum as stipulated in the Civil Code.

Article 482(1) of the Civil Act

2010 Single 62 Demurrer

XX

Republic of Korea Overseas

July 15, 2010

August 12, 2010

1. The plaintiff's claims are all dismissed.

2. The plaintiff shall bear the litigation costs.

With respect to the distribution amount of KRW 150,67,945 to the plaintiff on December 30, 209; KRW 213,530,00; KRW 13,918,073 to the amount of dividends of KRW 41,156,648,723 to the amount of dividends of KRW 47,97, KRW 977, KRW 977, KRW 497, KRW 497, KRW 976, KRW 497, KRW 976, KRW 977, KRW 9747, KRW 97, KRW 9757, KRW 977, KRW 97, KRW 497, KRW 975, KRW 97, KRW 97, KRW 975, KRW 97, KRW 497, KRW 975, KRW 97, KRW 497, KRW 975, KRW 975, KRW 297, KRW 9797, KRW 197,79767, KRW 397,97497.

1. Basic facts

A. On February 7, 2006, AA Bank (hereinafter “AA Bank”) applied for a voluntary auction with the Jeonju District Court 2006 Mata143, the Jeonju District Court 18003, the Jeonju District Court 18003, on the basis of the right to collateral security on December 31, 2001. The above court recognized the claim amount of February 14, 2006 as the delayed amount of KRW 509,00,000,000 as the delayed amount of KRW 21% per annum from August 3, 2005 to the full payment date, and decided to commence the auction.

B. During the process of the above voluntary auction, an application for double auction was received by the same court Nos. 1467, 2009, and 8506, and the application for auction was received by the same court No. 2006, 1481, 2006, 2006, 3821, 2006, 3845, and 2008, 2008, and 9298, and the auction procedure was conducted together with the above voluntary auction case.

C. On December 29, 2006, the above voluntary auction procedure is in progress, the Plaintiff subrogated 131,000,000 won out of the secured debt of the right to collateral security to AA Bank.

D. On December 30, 2009, the above auction court prepared a distribution schedule with the same content as the attached Form for KRW 2,852,838,546 of the actual amount to be distributed, except for KRW 74,353,710 of the execution expenses.

E. The Plaintiff raised an objection against the dividend amount of the Defendants from 4 to 21 on the date of the above distribution.

[Ground for Recognition: Facts without dispute, Gap's evidence Nos. 1, 5, 6, 7, and the purport of the entire pleadings]

2. The plaintiff's assertion and its judgment

A. Summary of the plaintiff's assertion

The plaintiff, as a third acquisitor of real estate at auction, subrogated to the AA Bank, which is the highest priority mortgagee, can exercise as a matter of course the right to claim and guarantee held by the AA Bank. Since the interest rate of the secured debt of the AA Bank is 21% per annum, the auction court applied the amount of interest on subrogation to the plaintiff from December 29, 2006 (the date of repayment by subrogation) to December 30, 2009 (the date of payment by subrogation) which applied the interest rate of 131,000,530,000 won per annum 213,530,000 won per annum, but it should pay the amount of interest on delay to the plaintiff as 5% per annum under the Civil Act, the amount of interest on subrogation should be reduced to 131,000,000 won, and the amount of interest on delay should be reduced to 16,000 won per annum 19,67,945,7506,605 won,67.

B. Determination

Article 482(1) of the Civil Act provides that a person who subrogated the obligee by subrogation of the obligee shall be entitled to exercise his/her right to indemnity and the right to collateral thereof within the scope of the obligee’s right to indemnity against the obligor. Therefore, the scope of the Plaintiff’s exercise of the right to demand reimbursement is limited within the scope of the obligee’s right to demand reimbursement against the obligor. However, Article 444(1) of the Civil Act recognizes the right to demand reimbursement within the extent of the obligee’s benefit at the time when the primary obligor makes performance without the primary obligor’s request. Articles 441(2) and 425(2) of the Civil Act limits the scope of the right to demand reimbursement to the obligor even if the obligor makes performance upon the request of the primary obligor, even if the obligor makes performance to the third party upon delegation by the obligor, insofar as there is no separate interest agreement between the obligor and the third party, Article 688(1) of the Civil Act and Article 397(1) of the Civil Act limits the scope of the obligee’s right to demand reimbursement against the obligor.

In this regard, if the Plaintiff did not act on behalf of the Plaintiff, the Plaintiff received a large amount of interest rate of 21% per annum from AA bank and subordinate creditors received a small amount of interest, and applied the annual interest rate of 5% per annum to the Plaintiff based on the contingency that the Plaintiff subrogated to the Plaintiff, the amount of dividends to the Plaintiff would decrease and the amount of dividends to junior creditors would increase, resulting in the Plaintiff’s unjust profits. ② According to the Supreme Court Decision 97Da1013 Decided January 21, 200, the lease guarantee insurance for the purpose of compensating for losses due to the nonperformance of the contractual obligation of the lessee is to guarantee damages to the lessee within the extent of the insured amount, and thus, the insurer’s liability is essentially the same as the guarantee liability. Therefore, in light of the legal doctrine of subrogation of the lessee, the insurer of the lease guarantee insurance that paid insurance money based on its guarantee nature, as well as the obligee’s right to collateral or collateral interest rate, can be claimed by subrogation between the lessee and the obligee.

The subrogation of performance is merely a system established in order to guarantee the right of reimbursement against the obligor, and it does not by itself succeed to the status of the obligee who is the party of the subrogated. For this reason, in relation to the obligor pursuant to Article 482(1) of the Civil Act, the subrogation is restricted within the scope of the right of reimbursement, and in relation to the third party, such as the surety, third acquisitor, and surety, the scope and method of subrogation is limited pursuant to each subparagraph of Article 482(2) of the Civil Act, and in relation to the obligee, the right of preferential reimbursement is not acknowledged in relation to the obligee (see Supreme Court Decision 8Da1797, Sept. 27, 198). It is unreasonable for the obligee to accept the subrogation of the obligor and the foregoing special agreement between the obligee and junior obligee to guarantee the obligor’s right of reimbursement and the obligor’s right of reimbursement. Therefore, even if the obligee’s right of subrogation cannot be seen as being unreasonable in light of the scope and method of exercising the right of subrogation as above.

3.In conclusion

Therefore, the plaintiff's claim based on the premise that the amount of dividend calculated by applying the interest rate of 21% per annum to the plaintiff should be distributed is dismissed as it is without merit. It is so decided as per Disposition.