[1] The case concerning the meaning of the special contract for termination and the responsibility of the Korea Technology Credit Guarantee Fund where the Korea Technology Credit Guarantee Fund established a second-class collateral security right above the guaranteed amount under the Factory Mortgage Act and acquired it as collateral, regardless of whether the construction of the relevant facilities was immediately appraised, etc., and accordingly the principal debtor establishes a second-class collateral security right on the factory site and building including the relevant machinery to the lending bank under the Factory Mortgage Act, and thus 50% of the guaranteed amount is terminated due to the principal debtor's establishment of the second-class collateral security right on the factory site and building including the relevant machinery

[2] The method of appropriation when the auction price of the security is not satisfied in a case where the same party establishes several different order of priority to secure the obligation arising from the same transactional relation with the same object

[3] The case holding that the Korea Technology Credit Guarantee Fund shall set up a second-class mortgage above the guaranteed amount under the Factory Mortgage Act and acquire it as collateral and terminate the guaranteed amount by 50% or more of the guaranteed amount, regardless of whether the construction of the relevant facility was immediately appraised, etc. on the front of the letter of credit guarantee while providing a credit guarantee for a loan for the purchase of machinery, and therefore the principal debtor shall set up a second-class mortgage on the site and building of the factory including the relevant machinery to the lending bank under the Factory Mortgage Act and thus the guaranteed amount is terminated by 50% of the guaranteed amount, and whether the collected amount by the execution of the comprehensive collateral mortgage established under the above termination agreement constitutes a recovery amount to be appropriated first for the repayment of the guaranteed collateral loan under Article 8 (1) 4 of the Credit Guarantee Agreement and its scope

[1] The case holding that, in case where the Korea Technology Credit Guarantee Fund established a second-class mortgage above the guaranteed amount under the Factory Mortgage Act and acquired it as collateral and terminated at least 50% of the guaranteed amount by establishing a second-class mortgage on the site and building including the relevant machine to the lending bank, and thus 50% of the guaranteed amount is terminated by the principal debtor, 50% of the guaranteed amount is guaranteed by the loan bank's comprehensive collateral mortgage on the site and building including the relevant machine, the above termination special contract purports that the loan bank will guarantee the final guarantee only for the remainder of the principal debt which the principal debtor bears at least 50% of the guaranteed amount due to the loan bank's acquisition of collateral, and the Korea Technology Credit Guarantee Fund has guaranteed only a part of the guaranteed amount due to the termination special contract, and the Korea Technology Credit Guarantee Fund is not liable for the guaranteed amount above the guarantee limit, but is still liable for the remainder of the guaranteed amount after payment due to the execution of the above collateral security.

[2] Where the same party establishes several different order of priority in order to secure the obligation arising from the same transactional relationship with respect to the same object, each right to collateral security provides a security within the scope of each limit of the total amount of the several obligations arising from the transactional relationship stipulated in the contract. Thus, if the auction proceeds of the collateral are not satisfied with the total amount of the obligation, the obligation to be extinguished due to the receipt of the consideration by the method of satisfaction of the obligation should be determined by the method of satisfaction of the obligation, and the above auction proceeds should not be appropriated

[3] The case holding that where the Korea Technology Credit Guarantee Fund established a second-class mortgage above the guaranteed amount under the Factory Mortgage Act and acquired it as collateral by establishing a second-class mortgage above 50% of the guaranteed amount, and accordingly 50% of the guaranteed amount is terminated due to the principal debtor's establishment of a second-class mortgage on the factory site and building including the relevant machinery to the lending bank by establishing a second-class mortgage on the factory site and building under the Factory Mortgage Act, it is reasonable to view that the recovered amount by the execution of the above comprehensive collateral mortgage does not constitute "the recovered amount by the execution of the security right as the secured debt" among the recovered amount to be appropriated first for the repayment of the guaranteed collateral loan in accordance with Article 8 (1) 4 of the Credit Guarantee Terms and Conditions, and only the scope of the collected amount by the first-class special agreement is limited to the proceeds of the relevant machinery.

[1] Articles 105 and 428 of the Civil Act / [2] Articles 357, 360, 476, and 477 of the Civil Act / [3] Articles 105, 357, 360, and 476 of the Civil Act

[2] Supreme Court Decision 86Meu2950 delivered on May 26, 1987 (Gong1987, 1071) Supreme Court Decision 90Da18678 delivered on July 23, 1991 (Gong1991, 220)

Industrial Bank of Korea (Law Firm Domin, Attorneys Kim Jong-Un et al., Counsel for the plaintiff-appellant)

Korea Technology Finance Corporation (Attorneys Han Han-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2002Na7659 delivered on August 21, 2002

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

1. The court below acknowledged the following facts based on the employed evidence.

A. On June 18, 1996, the Defendant issued a credit guarantee statement of KRW 355,00,000 to the Nonparty’s guarantor, the guaranteed principal, and the credit guarantee statement of KRW 355,00,000 as of March 15, 2004 to the Plaintiff’s store site. On July 1, 1996, the Plaintiff loaned KRW 355,000,000 to the Nonparty under the said credit guarantee by the Defendant.

B. At the time of the above credit guarantee agreement with the plaintiff, the defendant shall set up a second priority mortgage above the guaranteed amount under the Factory Mortgage Act (it shall not be added to the list of senior mortgages after the establishment) on the front of the credit guarantee statement of this case (Laminatatator 1 Slet, Me Ma/C 1) as a special agreement with the plaintiff, and shall enter the "the guaranteed amount" at least 50% of the guaranteed amount (the "the terminated special agreement of this case" hereinafter) in the above credit guarantee agreement. Under Article 1 of the above credit guarantee agreement, "the guaranteed loan" means a loan which is executed in accordance with the credit guarantee terms and conditions and has a credit guarantee relationship with the defendant, and "collection money" means all money (paragraph 6) acquired by the creditor for the purpose of recovery from the creditor's exercise of right of set-off, the debtor or third party's voluntary repayment or any other method, and Article 8 (1) provides that each of the following subparagraphs shall be first appropriated to the defendant's security right to repayment of the guaranteed bond of this case.

C. The non-party provided security to the plaintiff by setting up the right to collateral security under the Factory Mortgage Act with the creditor as the plaintiff and the debtor as to the land and factory located within the non-party's ownership (hereinafter referred to as "real estate of this case"). On December 9, 1995, the first maximum debt amount was 650,000,000, and the establishment registration of mortgage was 140 as to the above real estate of this case was 50,000,000, as 140. 2. 1. 1. 2. 3. 1996, other machinery than the machinery of this case was added to 140,000, 1996. 3. 1. 6. 1. 5. 1. 1. 3. 1. 5. 1. 1. 1. 5. 1. 1. 1. 1. 1996. 3. 6 . 1. 1. 3 . . . 6 . . 1. . . . 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . .0. . . . . . . . . . . . . . .

D. However, when the non-party defaulted on or around February 28, 1998 and failed to repay the amount borrowed from the plaintiff, the plaintiff applied for a voluntary auction on the real estate and machinery on the land of this case on April 22, 1998, and submitted a claim statement of KRW 1,892,469,365 as of June 22, 1999, the date of distribution of the procedure, and overdue interest of KRW 585,848,735 as of June 22, 199, and the loan of this case was 35,00,000 won as principal and interest of KRW 102,36,435 won from January 22, 1998 to June 22, 1999.

E. As a result of appraisal and assessment of the security at the above auction procedure, the real estate of this case was assessed as KRW 1,135,495,610, and KRW 290,520,00 respectively, and the machinery of this case was assessed as KRW 2,635,971,30, and eventually awarded a successful bid of KRW 1,420,10,000. The Plaintiff received 1,451,48,955 (hereinafter “the dividends of this case”) solely from June 22, 199 to KRW 290,570, KRW 290, KRW 310,520, KRW 310,000, KRW 297, KRW 280, KRW 289, KRW 2985, KRW 200, KRW 310,000 for each of the above dividends of this case, and KRW 1,489,205,005.

F. Meanwhile, on May 9, 200, the Defendant paid KRW 102,366,435 and interest KRW 6,909,734 to the Plaintiff on the pretext of performing the instant guaranteed obligation after the date of distribution.

2. The lower court, following the Defendant’s assertion, i.e., the registration of the establishment of the mortgage of this case established by the instant special agreement, as well as the instant machinery under the Factory Mortgage Act, has its effect on the instant real estate. Since the sales price prior to the instant real estate and its second priority exceeds KRW 985,00,000, which is the aggregate of the maximum debt amount of the instant mortgage of this case, 35,000, out of the instant dividends, shall be deemed to have been appropriated for the instant loan. The lower court, based on the Defendant’s assertion that the sales price of the instant machinery of this case was limited to KRW 355,00,000, which is the principal amount of the instant loan of KRW 350,000,000, which is the maximum debt amount of the instant mortgage of this case, was 102,36,435, Jun. 22, 199, the lower court determined that the Defendant’s remainder was 50,000 won and 396.

3. We examine the facts established by the court below. The object of the instant right to collateral security includes the instant real estate in addition to the instant machinery, and the obligation of the instant loan constitutes the secured obligation of the instant right to collateral security. In addition, if the Defendant performed the guaranteed obligation prior to the execution of the instant right to collateral security, the Defendant may obtain a partial transfer of the instant real estate and the instant machinery. Thus, the court below cannot interpret the object of the instant right to collateral security as only the instant machinery, or interpret the Plaintiff’s preferential repayment as limited to the price of the instant machinery sales. Further, the claim of the instant loan is the entire amount secured by the instant right to collateral security provided by the Nonparty, while the Plaintiff terminated the credit guarantee equivalent to 50% of the instant loan provided by the Defendant, and thus the remainder cannot be deemed as a double security by the Defendant’s partial guarantee. Thus, it cannot be deemed that the remainder of the loan of this case was established by the Defendant’s collateral security right and the remainder of the loan of this case by the Defendant’s credit guarantee agreement with the Defendant.

Rather, according to the facts and records established by the court below, since the agreement on termination of the contract of this case was concluded to the effect that the defendant will guarantee only the remainder except for the portion of the principal debt which the non-party to the loan of this case acquires by acquiring collateral of this case, at least 50% of the principal debt originally borne by the non-party to the loan of this case, and it can be known that each of the above sub-mortgage of this case including the right to collateral of this case is a comprehensive collateral loan with all the debts arising from credit transaction between the plaintiff and the non-party as the secured debt. Thus, the defendant who guaranteed only part of the debt of this case pursuant to the agreement on termination of the contract of this case is not liable for the debt above the guarantee limit, but is still liable for the remaining debt of this case after satisfaction of the claim of this case under the execution of the right to collateral of this case. It is naturally impossible to determine the proceeds of the auction of this case 200 out of the total amount of the secured debt of this case to be collected within the limit of 160.7.5 percent of the auction price of this case.

Therefore, the dividends of this case, including the proceeds from the sale of the real estate and the machinery of this case, are appropriated for the loans of this case by satisfaction of payment, and they include 159,973,885 won (=290,520,000 x 1,451,458,4855 ± 2,635,971,300). According to the above facts and records, the plaintiff appropriated the loans of this case for total 195,636,261 won in excess of the proceeds from the sale of the machinery of this case to the creditor of this case. The defendant did not dispute only about the method of satisfaction of payment of principal amount according to the order of priority of the proceeds from the sale of the real estate of this case to the creditor of this case, and there is no violation of the law of 7,500,000 won in excess of the amount of the credit guarantee loan of this case to the debtor of this case.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)