If a mortgagee disposes of a security at a price lower than the market price through the exercise of a security right, the amount of a claim for restitution of unjust enrichment by the offerer and damages

If a mortgagee disposes of a collateral at a price lower than the market price for the exercise of the right to collateral, the secured party may claim as unjust enrichment the amount exceeding the principal and interest of the collateral by the mortgagee’s disposal of the collateral, and as at the time of the disposal of the collateral, the amount exceeding the above disposal price may be claimed as compensation for damages due to nonperformance, the said amount shall not be calculated unless the disposal becomes final and conclusive.

Article 372 of the Civil Act

Supreme Court Decision 65Da2027 Delivered on December 21, 1965, 72Da1633 Delivered on November 14, 1972, and 73Da38 Delivered on June 5, 1973

Plaintiff 1 and one other

Defendant 1 et al.

Daegu High Court Decision 79Na1187 delivered on October 30, 1980

The judgment below is reversed;

The case shall be remanded to the Daegu High Court.

The grounds of appeal are examined.

1. The judgment below held that on August 22, 197, the Defendant’s disposal of the real estate owned by the Plaintiffs (Plaintiff 1’s shares 5/18 and Plaintiff 213/18’s shares), on April 27, 197, the Defendant’s disposal of the real estate to the Nonparty on April 27, 1979, and the loan principle at the time of the said disposal (However, the Defendant’s revocation of confession as to the principal and interest of this case is not allowed) did not conflict between the parties. The Defendant’s disposal of the real estate of this case is the execution of security right. Upon the Plaintiffs’ request, at KRW 24,761,30, the Defendant’s disposal of the real estate of this case was 24,761,30, the principal and interest of the secured claim at the time of the disposal of this case’s real estate at KRW 7,221,093 and KRW 150,00,000,00 for the expenses recognized by the Plaintiffs’ reimbursement of shares.

2. In so-called transfer of ownership of real estate as collateral for the purpose of collateral security to a creditor, if the creditor (the secured party) realized or disposes of collateral in order to obtain satisfaction of the secured claim, the creditor is obligated to settle the case. Therefore, the creditor is obligated to return from the realization or appraised value the balance after deducting the principal and interest of the secured claim at that time as well as the refund expenses, and such realization or appraisal shall be calculated at an objective fair price. Therefore, the debtor is not liable for default (see, e.g., Supreme Court Decision 65Da2027, Nov. 21, 1965; 72Da16333, Nov. 14, 1972; 73Da3838, Jun. 5, 1973). In order for the above electronic claim to be the secured party to be liquidated, the court below's order to return the difference between the amount of the secured claim and the amount of the secured claim at that time and the amount of the secured claim at that time to be realized without any error.

Therefore, in this respect, the judgment of the court below is omitted and the judgment of the court below cannot be reversed.

Therefore, the judgment of the court below is reversed and remanded. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeon Soo-hee (Presiding Justice)