The scope of the right to indemnity of the surety who has lost the ownership of the mortgaged property due to the execution of collateral security.

As a result of re-auction, even if the secured money kept by the successful bidder prior to the auction was included in the proceeds from the sale of real estate to be distributed and the total amount was appropriated for the repayment of the secured property, the secured money is related to the auction of the mortgaged property, but it cannot be viewed as the contribution of the mortgaged property itself, so it is included in the scope of indemnity against the debtor.

Articles 360, 370, 341, 441, 648, 655 of the Civil Act, Article 1 of the Auction Act

Supreme Court Order 64Ma718 Decided October 19, 1964

Mutorse

Gu Forest Construction Corporation

Seoul Central District Court (78Gahap2768) in the first instance trial

The original judgment shall be modified as follows:

The defendant shall pay to the plaintiff the amount of KRW 9,151,717 and the amount at the rate of five percent per annum from March 18, 1978 to the date of full payment.

The plaintiff's remaining claims are dismissed.

The costs of lawsuit shall be ten minutes through the first and second trials, and one of them shall be borne by the plaintiff and the other by the defendant.

A provisional execution may be carried out only for the above paragraph (2) with no order of provisional execution among the original judgment.

The defendant shall pay to the plaintiff the amount of KRW 10,076,717 and the amount equivalent to five percent per annum from March 18, 1978 to the full payment.

Litigation costs shall be borne by the defendant.

The above paragraph (1) can be provisionally executed.

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

1. On the 6th day of 7th day of 7th day of 5th day of 5th day of 4th day of 7th day of 5th day of 5th day of 5th day of 5th day of 5th day of 5th day of 5th day of 5th day of 7th day of 5th day of 5th day of 5th day of 5th day of 5th day of 5th day of 5th day of 5th day of 7th day of 5th day of 5th day of 5th day of 5th day of 5th day of 5th day of 5th day of 5th day of 5th day of 5th day of 5th day of 5th day of 1st day of 5th day of 1st day of 5th day of 5th day of 1st day of 5th day of 1st day of 5th day of 5th day of 196 day day of 1 day day day day of 1 day of 7 day of 1 day of 1 day of 5th day

According to the above facts, the plaintiff is a person who has pledged his property to secure the obligation to return the above loan to the non-party bank of the defendant company. Thus, the non-party company, within the limit of the amount of contribution by auction of the above collateral, can exercise his right to indemnity against the defendant company only to the amount exempted by the above non-party company, and to the expenses which cannot be avoided such as legal interest and expenses for execution of mortgage thereafter, and other damages (see Articles 360, 370, 341, 441, etc. of the Civil Act). The scope of indemnity can not be limited to the amount of 9,898,477 won as a debt to the non-party bank of the defendant company and the amount of 195 billion won as a contribution of the above collateral, the amount of 9,246,760 won as a contribution of the above collateral, which can not exceed the amount of 15 billion won as the amount of 9.5 billion won per annum of the above collateral collateral.

2. However, the defendant company was a single business entity whose husband was the non-party 1, who originally operated the defendant company's own business, and was the representative director of the defendant company, to make a false operation of the defendant company's business, such as making the defendant company's non-payment of bonds without permission. The defendant company's representative director, who was in his own name, retired from the office of representative director. The defendant company's debt cannot be viewed as the defendant company's loan because there is no trace of having received the loan by personal making the loan on the security that the plaintiff's wife was under his own name, and since the plaintiff was not the actual owner of the real estate in this case, and only was the person who was entrusted with his own name from the non-party 1, who was his husband, the plaintiff did not own the real estate in this case or the debt secured by the above right to collateral security, on the premise that the plaintiff's claim for this case was unreasonable, or there is no reason to acknowledge some of the plaintiff's statements in Eul evidence Nos. 1 (a) and testimony evidence No. 2 (a evidence and evidence No. 5).

Furthermore, the defendant's attorney asserts that the defendant's representative director of the defendant company set off his claim amounting to KRW 90,668,617, which is the sum of 7,377,744 won in income tax to be paid by the defendant company to the defendant company before the two positions of the representative director of the defendant company and the 83,290,873 won in income tax to be paid to the defendant company, and the 83,290,873 won in unpaid amount of the defendant's advance payment company against the defendant company. Thus, the plaintiff's claim for reimbursement of this case which the plaintiff claimed against the defendant company is set off within the equivalent amount of the plaintiff's above claim. However, according to the facts acknowledged above, the above special reasons such as the fact that the plaintiff's claim for reimbursement of this case was made against the defendant company and the claim for reimbursement of this case was transferred from the non-party company to the non-party company. Thus, even if the non-party's claim was made with the above obligation against the defendant company, it cannot be offset.

3. Therefore, the defendant is obligated to pay to the plaintiff the above 9,151,717 won and damages for delay at the rate of five percent per annum from March 18, 1978 to the date of full payment. Thus, the plaintiff's claim for this case is reasonable to the extent that the above claims are recognized, and some of them are accepted, and the remaining claims are unfair and dismissed. Thus, since the original judgment differs from the above judgment, it is decided to revise the original judgment, and it is so decided as per Disposition by the application of Articles 95 and 92 of the Civil Procedure Act to the plaintiff, and Article 3 of the Act on Temporary Measures for Civil Litigation to the declaration of provisional execution.

Judges Park Jong-dong (Presiding Judge) Kim Jong-sung