Whether the third party purchaser of the mortgaged real estate may invoke the right of the mortgagee of the mortgaged real estate concerning the confirmation of the secured debt and the confirmation of the secured debt (affirmative)

Articles 357 and 364 of the Civil Act

Supreme Court Decision 2001Da47528 Delivered on November 9, 2001 (Gong2002Sang, 13) Supreme Court Decision 2001Da47528 Delivered on November 9, 2001 (Gong2002Sang, 13) Supreme Court Decision 2002Da7176 Delivered on May 24, 2002 (Gong2002Ha, 1492)

Plaintiff

Defendant

Seoul High Court Decision 2005Na19691 delivered on October 25, 2005

The part of the lower judgment against the Defendant ordering payment of money is reversed, and that part of the case is remanded to the Seoul High Court. The Defendant’s remaining appeal is dismissed.

1. Regarding ground of appeal No. 1

A. According to the reasoning of the lower judgment, the lower court acknowledged the facts as indicated in its reasoning after comprehensively taking account of the adopted evidence. On April 19, 2004, the lower court determined that the Defendant had a duty to pay the Plaintiff the said money and damages for delay, on the ground that the amount of damages was KRW 141,60,000, which is the maximum debt amount of the establishment registration of the instant mortgage, due to the completion of the establishment registration of the instant land on April 19, 204, barring any special circumstance.

B. However, a third party who acquired a right under Article 364 of the Civil Act with respect to a mortgaged real estate may claim the extinction of the mortgaged real estate by repaying the debt established within the scope of the maximum debt amount after the debt is established (see Supreme Court Decision 2002Da7176, May 24, 2002, etc.). Thus, in the event a valid mortgage is established due to a third party's illegal act, the damage suffered by the real estate owner is the expense for claiming the extinction of the mortgaged real estate against the mortgagee. Meanwhile, the secured debt secured by the mortgaged real estate is the expense for claiming the extinction of the mortgaged real estate. Meanwhile, if the term of the right to the mortgaged real estate has been established or a settlement period has been established in the basic transaction contract secured by the mortgaged real estate, in principle, at the time when the claim secured by the mortgaged real estate has been entirely extinguished and the debtor has no intention to continue transactions such as borrowing money from the creditor, even if the term of the mortgaged real estate or the settlement period has been expired, the mortgagee may claim cancellation of the right to the mortgaged real estate at any time.

Therefore, the court below should examine whether the secured debt of this case was determined at the time of the closing of argument in the court below, whether the owner could cancel or terminate the contract in accordance with the above legal principles, and the amount of the secured debt resulting therefrom, and then determine the amount of the damages arising from the Defendant’s arbitrary establishment of the secured debt in relation to the land of this case.

Nevertheless, the court below judged that the maximum debt amount of the registration of creation of the right to collateral security of this case is the amount of damages without reaching the above determination. Thus, the court below erred by misapprehending the legal principles as to the scope of damages and thereby affecting the conclusion of the judgment. Thus, the ground of appeal assigning this error is with merit.

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, the court below recognized that the plaintiff purchased the land of this case from the non-party and entrusted the title of registration to the defendant. In light of the records, the above fact-finding and judgment of the court below are just, and there is no error of law such as misconception of facts against the rules of evidence as alleged in the

3. Conclusion

Therefore, the part of the judgment below against the defendant ordering monetary payment is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The defendant's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Kang-tae (Presiding Justice)