[1] In a case where the dividend is insufficient to extinguish all of the claims secured by the same secured party at a voluntary auction, the method of satisfaction of performance

[2] In the case of the principal debtor, whether there is a difference between the debt with the guarantor and the debt without guarantor (negative)

[3] Whether a claim for payment with a promissory note with which the underlying debt is extinguished constitutes an abuse of rights (negative)

[1] In a case where the dividend distributed at an auction to exercise a security right is insufficient to extinguish all of the secured claims held by the secured party, even if there is an agreement between the obligee and the obligor on the satisfaction of the claim, the satisfaction of the claim according to such agreement cannot be permitted, and the dividend shall be appropriated according to the method of satisfaction of the claim according to Article 477 of the Civil Code, which is the most equitable method of appropriation.

[2] Where the person effecting performance is the principal debtor, there is no ground to view that the former is more favorable than the latter, between the debt with the guarantor and the debt without guarantor, and thus both parties are not different in terms of the interest of repayment.

[3] An act of a bill must be dealt with separately from the underlying relationship of the receipt of a bill as an unmanned act, and a bill is a security representing rights under a certain bill regardless of the underlying relationship, and even if a claim was filed against the issuer for the payment of a bill against the issuer, the claim by the holder for the payment of a bill is against the principle of trust and good faith, and it does not constitute an abuse of rights.

[1] Article 477 of the Civil Code, Articles 587 and 735 of the Civil Procedure Act / [2] Article 477 of the Civil Code / [3] Articles 17 and 77 (1) of the Bills of Exchange and Promissory Notes Act, Article 2 of the Civil Code

[1] Supreme Court Decision 90Da18678 delivered on July 23, 1991 (Gong1991, 2220) Supreme Court Decision 91Da17092 delivered on December 10, 1991 (Gong1992, 480) Supreme Court Decision 95Da5504 delivered on May 10, 1996 (Gong1996Ha, 1818) / [2] Supreme Court Decision 84Da2093 delivered on March 12, 1985 (Gong1985, 542) / [3] Supreme Court Decision 82Da1405 delivered on January 24, 1984 (Gong1984, 364)

National Mutual Savings and Finance Company (Attorney Han Han-chul, Counsel for defendant-appellee)

[Defendant-Appellant] The Head of Si/Gun/Gu (Attorney Park Jong-chul, Counsel for defendant-appellant)

Seoul District Court Decision 95Na52184 delivered on October 22, 1996

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief filed after the lapse of the period).

In cases where dividends distributed in an auction to exercise a security right fall short of extinguishing all of the secured claims held by the secured party, even if there was an agreement between the secured party and the obligor on the satisfaction of performance, the satisfaction of performance according to the agreement cannot be permitted, and it shall be appropriated in accordance with the method of statutory appropriation of performance under Article 477 of the Civil Act, which is the most equitable method of appropriation (see Supreme Court Decision 95Da5504 delivered on May 10, 1996), and there is no ground to view that there is no difference between the secured party and the debt without the guarantor as the former and the latter (see Supreme Court Decision 84Da2093 delivered on March 12, 1985). Thus, in cases where promissorysory notes issued by a third party as a security for a claim are issued, it shall be deemed that there is no difference in the interests of repayment between the parties.

In addition, an act of a bill must be dealt with separately from the underlying relationship of the acceptance of a bill as an unmanned act, and a bill is a security representing rights under a certain bill, regardless of the underlying relationship, and even if a claim was filed against the issuer for the payment of a bill against the issuer, the holder's claim for payment of a bill is against the principle of trust and good faith and it does not constitute an abuse of rights (see Supreme Court Decision 82Da1405 delivered on January 24, 1984).

According to the reasoning of the judgment below, the court below determined that the plaintiff was still entitled to claim the entire amount of the loan (as the principal amount of the loan (as the original adjudication) at the discount of the bill of this case against the non-party, and the total amount of the loan (as the principal amount of the loan) at the discount of the bill of this case is 19,217,142 won and the total amount of the loan (as the original adjudication) at the discount of the bill of this case is 11,790,408 won as the principal amount of the loan (as the original adjudication) at the discount of the bill of this case is 19,217,142 won and the total amount of the loan at the discount of the second bill is 11,790,408 won as the principal amount of the loan (as the original adjudication) at the discount of the bill of this case is 40,000 won and the interest is 11,790,408 won.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there are no errors in the misapprehension of legal principles as to statutory appropriation of payment and profit from payment, or in the misapprehension of legal principles as to partial extinction of bill obligations, as otherwise alleged in the ground of appeal. All the

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Chang-hun (Presiding Justice)