Samju Co., Ltd. (Law Firm Cheongpa, Attorney Shin Sung-sung, Counsel for defendant-appellant)

Industrial Bank of Korea (Law Firm Lee & Lee LLC, Attorney Lee Do-sub, Counsel for defendant-appellant)

September 26, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant shall implement the additional registration procedure for the transfer of the right to collateral security on the ground of subrogation on June 27, 201 with respect to the right to collateral security completed by the Seoul Northern District Court Registry No. 126486, Dec. 16, 2009 with respect to the real estate listed in the attached list to the Plaintiff.

1. Basic facts

A. On July 31, 2009, the Defendant: (a) loaned KRW 250,00,00 to Amastus Co., Ltd. (hereinafter “Amastus”) at a variable interest rate; (b) on July 30, 2015, the due date for payment, the loan was set at a rate of KRW 250,00 (hereinafter “first loan”); (c) on the same day, the Defendant entered into a mortgage agreement with the Defendant as to the establishment of a mortgage within the scope of KRW 70,000,00,000 with respect to the land for a factory in Amastus and Amastus owned by Amastus; and (d) 339.6m2m2 and 1315.02m2m2, 2nd and 55m2m2 of the two factories in Amastrobro (hereinafter “the instant Chuncheon factory and its site”); and (e) completed the mortgage registration within the name of the Defendant (hereinafter “the mortgage creation”).

B. After August 20, 200, the Defendant: (a) determined the interest rate of KRW 300,000,000 on August 20, 200; (b) the maturity date on August 19, 2010; (c) determined the interest rate of KRW 120,00,000 on December 18, 209 as the loan interest rate; and (d) the maturity date on September 30, 2019 as the loan amount of KRW 20,000 on each of the loans (hereinafter referred to as “third loan”); (b) concluded the loan as of August 20, 209 on December 18, 209 as the “third loan”; and (c) concluded the mortgage agreement with the obligor on December 15, 2009 as to the establishment of the mortgage (hereinafter “instant loan”); and (d) concluded the mortgage agreement with the obligor on December 19, 200, the maximum debt amount of KRW 10014,000.4.

C. On the other hand, the Plaintiff, on July 21, 2009, sold the Chuncheon factory of this case and its site to Amas on July 21, 2009, set the maximum debt amount as KRW 700,000 with respect to the Chuncheon factory of this case and its site as the maximum debt amount, and completed the registration of establishment of mortgage in the name of the Plaintiff lower than the Defendant on the same day.

D. After the Defendant’s request, the auction procedure of real estate was commenced in relation to the instant Chuncheon factory and its site at Chuncheon District Court Nos. 2010, 10418 and 2011, 1930 (Duals). In the above auction procedure, the Defendant reported the claim of KRW 688,218,696, total of the balance and interest of the loans of KRW 1,2,30,000, and received dividends in full. The Plaintiff, a junior mortgagee, was distributed only to KRW 31,95,798, which did not reach the maximum debt amount.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 3, the purport of the whole pleadings

2. Determination as to the cause of action

A. The plaintiff's assertion

The Plaintiff filed an auction only with respect to the Chuncheon Factory and its site, and received the entire amount of the secured debt from the Defendant, which was the mortgagee of the instant plant and its site and the instant building site (hereinafter referred to as the “instant real estate”). As to the establishment of the instant real estate as a subordinate mortgagee pursuant to Article 368(2) of the Civil Act, the Plaintiff asserted that, if the instant real estate was sold at the same time, the Defendant, who was the senior mortgagee, could exercise the instant secured mortgage by subrogation to the Defendant within the extent of the amount that the Defendant could have received reimbursement from the auction price of the instant building, on behalf of the Defendant, within the limit of the amount that he could have received from the Defendant, if the instant real estate had been sold at the same time, the Plaintiff sought implementation of the registration procedure

B. Determination

However, according to Article 368(2) of the Civil Act, if the proceeds of the auction of some of the real estate owned by the same credit is paid out in full from the proceeds of the auction, the mortgagee may exercise the mortgage by subrogation to the extent of the amount set forth in Article 368(1) of the same Act. However, if the above provisions apply to the case where a part of the real estate owned by the mortgagee is owned by the mortgagee, the guarantor's property is jointly owned by the debtor, and as such, it is expected that the ultimate liability should be attributed to the debtor under the provisions on subrogation and provides a security, so it is impossible to deprive the debtor of the expectation interest due to the establishment of subordinate mortgage, and ② if the debtor's property owned by the mortgagee is recognized as the exercise of senior mortgage on the real estate owned by the mortgagee, the mortgagee is not entitled to exercise the senior mortgage on the real estate owned by the mortgagee 96 under the latter part of the Civil Act.

According to the above evidence, the non-party, who is the owner of the annual establishment of this case, can be recognized as the joint and several surety in addition to the establishment of the above collateral. However, even if the joint and several surety is a joint and several surety, the debtor is in the position of another person. In relation to the annual establishment of the loan of this case, the non-party is the person who provided the real estate as security to secure the other person's obligation, i.e., the person who provided the property to secure the other person's obligation. Thus, in this case, considering the above legal principles and in particular, the non-party's annual establishment of the factory of this case and the site of this case, after the establishment of the subordinate mortgage, becomes the object of joint and several mortgages, the non-party, who is the owner of the right of this case, should be deemed to be the owner of the right of this case, and thus, even if the defendant had the right of the first priority, it should not be deemed that the non-party's new establishment of the mortgage of this case was not jointly owned by the non-party 2.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Man-su (Presiding Judge)