[1] The validity of waiver in a case where a mortgage on a part of the joint mortgage was renounced

[2] Status of subordinate mortgagee prior to the occurrence of subrogation

[1] In the case of a joint mortgage, the creditor of the joint mortgage may obtain at his/her own discretion, unless it is intended to protect the subordinate mortgagee, etc., repayment of all or part of the claim from any of the joint mortgage objects. Thus, even if he/she renounced the mortgage on a part of the joint mortgage object, the waiver's effect does not extend to other joint mortgage objects.

[2] In a case where a joint mortgagee is unable to subrogate the relevant real estate because he/she waivers the mortgage on the real estate which was not the object of subordinated mortgage prior to the occurrence of the subrogation right of the subordinated mortgagee because he/she received most repayment from the joint mortgagee having a subordinated mortgage, but did not receive full repayment, and thus his/her expectation right is infringed, it is reasonable to deem that the subordinated mortgagee may not claim damages against the joint mortgagee, and that the waiver of the mortgage without the consent of the subordinate mortgagee cannot be asserted against the subordinate mortgagee.

The proviso of Article 191(1) and Article 368 of the Civil Act

Park Pung (Attorney Cho Young-chul et al., Counsel for the plaintiff-appellant)

Musan Construction Co., Ltd. (Attorney Kim Jong-soo, Counsel for the defendant-appellant)

1. Of the distribution schedule prepared by the above court on September 29, 1994, the following amount of dividends against the plaintiff and the defendant shall be revoked and the amount of dividends of KRW 2,774,070 against the plaintiff and the defendant shall be changed to KRW 37,199,426, the amount of dividends of KRW 38,245,470 against the defendant, and the amount of dividends of Type 38,245,470 against the defendant shall be changed to KRW 3,820,114.

2. The plaintiff's remaining claims are dismissed.

3. Three-minutes of litigation costs are assessed against the defendant, and the remainder is assessed against the plaintiff.

Busan District Court's Busan District Court's Busan District Court's 93 Doz. 16392 distributed 114,736,401 won after deducting 2,774,070 won from the amount actually distributed to the plaintiff by modifying the distribution schedule prepared by the above court concerning the distribution of the real estate auction case (No. 16392).

1. Basic facts

The following facts may be acknowledged in light of the whole purport of the pleadings in the descriptions of Gap evidence 1-1, 2, 3, 2-1, 3-2, 3-1 through 16, 4-1 through 34, 1-1 through 4-4, and 1-1 through 4-4.

A. On March 6, 191, Nonparty 2 lent 30,000 won to Nonparty 3, 40,000,000 won to Nonparty 1, and on March 6, 1991, Nonparty 3 was mutually changed on March 2, 1991, Ulsan-si, Dong-dong 413 2,143m2 (hereinafter referred to as “one real estate”) on the same 413m2, 772m2 (hereinafter referred to as “2,”), 30m2, 413m2, 413-1, 413-2, 300, 300, 200, 300, 300, 300, 30,000, 30,000 won, 10,000 won, 10,000 won, 20,000 won, 30,00,000 won, 30.

B. On May 18, 1992, the non-party Han Young-young, Do governor, and Lee Jong-soo had registered the establishment of a mortgage in the fifth order with respect to the first real estate owned by Han Young-chul on May 18, 1992, with respect to which the debtor's establishment of a mortgage was completed, the non-party Han Young-young, Han-young, Lee Ho-young, Lee Ho-young, Lee Ho-young, Lee Do-young, Lee, the maximum debt amount, 600,000 won, and the fifth order with respect to the first real estate owned by Han-young on June 1, 1992. The defendant company completed the establishment of a mortgage for the first real estate owned by Han Young-chul, the non-party corporation as the addressee of the Nam Yang-tae concrete on June 10, 1992. The defendant company issued the above 70,000,0000,000 won with the face value of the non-party corporation's face value, 10,00,000,0.

C. On June 13 of the same year, the Plaintiff lent 100,000,00 won interest rate of 25% per annum, and on September 30 of the same year, the period of reimbursement of which was set on September 15 of the same year, and on the collateral, the Plaintiff already cancelled on June 15 of the same year with respect to the first real estate owned by the debtor, the creditor, the creditor, the maximum debt amount of 140,00,000 won, and the second and third real estate. (The second real estate was registered on June 15 of the same year) The establishment registration of a mortgage was completed for the second and third real estate (the second real estate was registered on June 2 of the same year with the fifth priority priority of the debtor, the non-party, the mortgagee, the mortgagee, and the maximum debt amount of 170,000,000 won.)

D. Upon the refusal of payment of a promissory note above, the defendant company received on March 5, 1993, 193, 200 won for loans and 30 won for the first time for the first time for the first time for the sale of real estate from 193 to 50 won, 20 won for the first time for the second time for the second time for the auction on June 3, 1993, 200 won for the first time for the second time for the second time for the second time for the first time for the second time for the second time for the second time for the first time for the first time for the second time for the second time for the first time for the first time for the second time for the first time for the second time for the first time for the second time for the first time for the second time for the second time for the second time for the first time for the first time for 70th time for the first time for the first time for the second time for the second time for the first time for the second time for the second time for 70th time for the second time for the second time for the second time for the second time for the second time for the second time for sale.

E. On December 14, 194, the Plaintiff filed an application for the auction of real estate with the court around 93 16392, based on the fifth priority collective security right on real estate 2 and 3, and applied for the commencement of the auction on December 16, 1994. The Defendant Company filed an application for the distribution of the above bonds transferred from the defense counsel on January 5, 1994. Upon the successful bid of KRW 120,780,00, the aggregate amount of KRW 153,331,313 ( principal 100,00,000,000 + KRW 49,863,000 + KRW 30,00 + KRW 47,000, KRW 30, KRW 463,000 + KRW 30, KRW 468,468,300; the Defendant Company filed an application for the distribution of dividends on September 3, 194.

2. Judgment on the plaintiff's primary argument

A. The plaintiff, around the other hand, waives the claim on a part of the joint mortgagee's mortgage, the effect of the waiver extends to other joint mortgages. The defendant company renounced the first, second, and third collective mortgages on the first real estate in the case of voluntary auction at 93 others, 6548, and the effect of renunciation extends to the first, second, and third collective mortgages on the third real estate which is the joint collateral. Thus, the defendant company's distribution of the above amount of KRW 114,736,410 on the basis of the first, second, and third collective mortgages on the third real estate which is the joint collateral. Thus, the defendant company asserted that the distribution of the dividends should be modified in accordance with the purport of the claim.

B. Therefore, in the case of a joint mortgage, if the creditor of the joint mortgage excludes the case for the protection of the subordinate mortgagee as seen below, he can obtain satisfaction of all or part of his claim from any of the joint mortgage objects. Thus, even if he renounced the mortgage on a part of the joint mortgage object, the effect of waiver does not extend to other joint mortgage objects. As seen earlier, in the case of a voluntary auction at this court 93 Maz.6548, the waiver of the mortgage is limited to the first, second, and third collective mortgage, so the effect of the waiver is not limited to the second and third collective mortgage on the first real estate. Thus, the plaintiff's main claim based on the different premise does not need further be decided.

3. Judgment on the plaintiff's conjunctive assertion

A. Where a joint mortgagee distributes part of the immovable property which is the object jointly mortgaged first, he/she may exercise the mortgage by subrogation of the mortgagee to the extent of the amount which he/she can receive out of the auction price of other immovable property where the mortgagee takes out the whole amount of the immovable property which is the object jointly mortgaged at the same time (Article 368(2) of the Civil Act). However, the right of subrogation of the mortgagee is created only when the joint mortgagee takes out the repayment of the balance, i.e., a kind of expectation right at the time of the repayment of the above balance. Such expectation right is also protected as a right. Thus, since the joint mortgagee did not receive the full repayment from the joint mortgagee but did not receive the full repayment, it is reasonable to view that the first mortgagee cannot be subrogated to the above real property which is the object of subordinated mortgage prior to the occurrence of the right of subrogation of the junior mortgagee, and thus, it cannot be asserted separately by the second mortgagee or the second mortgagee without the consent of the plaintiff to the above third party.

(b) Group 1, 2, and 3 of the Plaintiff’s real estate was jointly mortgaged 1, 2, and 3 of the aggregate amount of 1, 400 won (the aggregate amount of 1, 2, and 3 of the aggregate amount of 1, 50 won which would have been disposed of by the Defendant Company 1, 30 of the aggregate amount of 1, 50 won which would have been disposed of by the Defendant Company 2, 30 of the aggregate amount of 1, 47 of the aggregate amount which would have been disposed of by the Defendant Company 1, 30 of the aggregate amount of 1, 47 of the aggregate amount which would have been disposed of by the Defendant Company 5, 30 of the aggregate amount which would have been disposed of by the Defendant Company 1, 47 of the aggregate amount which would have been disposed of by the Defendant Company 2, 30 of the aggregate amount which would have been disposed of by the Defendant Company 1,47 of the aggregate amount which would have been disposed of by the Defendant 1, 2, 31, 3147 of the aggregate amount

4. Conclusion

Therefore, on September 29, 1994, the distribution schedule of this case, which was prepared by this court on September 29, 1994 regarding the case of applying for the auction of real estate rent 16392, which was accepted by the defendant company's claim and distributed to the defendant company the total amount of KRW 114,736,410, which was applied for a demand for distribution, shall be revoked, respectively, and 2,774,070 won against the plaintiff and the defendant shall be revoked, and 37,199,426 won shall be 38,245,470 won shall be changed to 3,820,114 won against the defendant. Thus, the plaintiff's claim of this case of this case shall be accepted within the extent of the above recognition, and the remaining claims shall be dismissed without any justifiable reasons. It is so decided as per Disposition.

Judges Kim Sun-hee (Presiding Judge)