[1] In a case where the form of individual right to collateral security, other than the form of the joint right to collateral security, has been established in order to obtain a preferential repayment of the aggregate amount of the maximum debt amount of each right to collateral security when establishing a group of real estate for the purpose of securing the same claim arising out of a single basic contract, whether the cumulative right to collateral security has been established (affirmative)

[2] In a case where a creditor has been established a cumulative collateral security on a real estate owned by a debtor and a real estate owned by a person who has pledged his/her property to secure the same credit arising from a single basic contract, and where a creditor has been paid out of the proceeds of sale after the auction, whether a person who has pledged his/her property to secure another's property may be held as a person who has performed the secured obligation

[1] In a case where the parties to a collective security agreement establish several real estate to secure the same claim arising out of a single basic agreement and take the form of individual collective security agreement, not in the form of the collective security agreement, to obtain a preferential repayment of the aggregate amount of the maximum debt amount, such collective security agreement constitutes a collective security agreement, not the joint collateral agreement to which Article 368 of the Civil Act applies, but the cumulative collateral security agreement provides a cumulative collateral security rather than the joint collateral agreement to which the said Article applies. Such cumulative collateral security agreement does not overlap with the scope of the joint collateral. As such, a creditor granted the cumulative collateral security agreement may exercise multiple joint collateral security agreements at the same time, and even one of the several joint collateral security agreements, a creditor granted the cumulative collateral may exercise the right to obtain a preferential repayment within the scope of the maximum debt amount by exercising the remaining collective security agreement within the scope of the maximum debt amount

[2] Where a creditor has been granted a cumulative collateral security on real estate owned by a debtor and real estate owned by a person who has pledged his/her property to secure the same claim arising from a single basic contract, and where a creditor has been granted a repayment from the proceeds of sale after an auction, a person who has pledged his/her property to secure another's property may exercise a right to indemnity against the debtor and a right to collateral held by a previous creditor pursuant to Articles 481 and 482 of the Civil Code at the same time. In this case, a person who has pledged his/her property to secure another's property may exercise a right to collateral security on the real estate

[1] Articles 356, 357, and 368 of the Civil Act / [2] Articles 341, 356, 357, 370, 481, and 482 of the Civil Act

Plaintiff 1 and one other (Seoul Law Firm, Attorneys Lee Gyeong-min et al., Counsel for the plaintiff-appellant)

Do Young General Construction Co., Ltd. (formerly: Hosung General Construction Co., Ltd.) (Bae, Kim & Lee LLC, Attorneys Park Sang-hwan et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2013Na69240, 69257 decided June 24, 2014

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Basic factual basis

The reasoning of the lower judgment and the record reveal the following facts.

A. On Oct. 16, 2009, the Korea Food and Drug Bank (hereinafter “Korea Food and Drug Bank”) granted loans of KRW 7.5 billion at the Song Ba Co., Ltd. Co., Ltd. (hereinafter “Song White”), setting the lending term at 10% per annum, 10% per annum, and 25% per annum per annum (hereinafter “instant loans”). Plaintiff 1 jointly and severally guaranteed the current and future obligations with respect to the Song Y Yan Mutual Savings Bank on the same day within the scope of KRW 9.75 billion.

B. On October 14, 2009, Songyang Mutual Savings Bank entered into a contract for the creation of three groups’ right to collateral security (hereinafter “the right to collateral security (hereinafter “the right to collateral security”) as follows in order to secure the existing and future obligations against the bank. On October 16, 2009, the Plaintiff completed the registration of creation of the right to collateral security (hereinafter “the right to collateral security”) in the future. Accordingly, ① four units of the building located in Songyang-si, Chungcheongnam-gu, Incheon, as the right to collateral security (hereinafter “the right to collateral security”) and four units of the right to collateral security (hereinafter “the right to collateral security”) with the right to collateral security (hereinafter “the right to collateral security”) with the maximum debt amount of KRW 2.5 billion, ② the land and the right to collateral security (hereinafter “the right to collateral security”) owned by Plaintiff 1 as the joint collateral and the right to collateral security (hereinafter “the right to collateral security (hereinafter “the right to collateral security”) with each of the parties to each of the rights to collateral security (hereinafter “the right to collateral security”).

C. As to the above land owned by the Plaintiffs, public works under the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor were implemented, and the project implementer acquired the above land through consultation. The project implementer paid KRW 1,01,463,842 for Plaintiff 1, and KRW 1,013,000,000 for Plaintiff 2, respectively, according to the exercise of the subrogation right of a certain mutual savings bank for the compensation for the acquisition through consultation.

D. The Plaintiff, based on the instant Group A’s right to collateral security, received a voluntary decision to commence the auction on apartment buildings located in the ○○dong, owned by Plaintiff 1, and Plaintiff 1 repaid KRW 200 million out of the instant loans to the Yongsan Mutual Savings Bank on February 23, 2012 in order to postpone the date of sale.

E. On March 21, 2012, Puman Mutual Savings Bank transferred all of the instant A, B, and C Group’s collateral security rights to the instant loan and its collateral to secure the instant loan and its collateral, and completed the supplementary registration of the transfer of the right to collateral security on April 3, 2012.

F. Meanwhile, on September 7, 2010, the Defendant completed the registration of the establishment of a neighboring mortgage covering the entire building in the Namyang as a joint collateral, the maximum debt amount of which is KRW 1.95 billion, in order to secure the claim for the construction cost against Songyang.

G. At the request of creditors, including the Defendant, the auction procedure was initiated with regard to the 38 rooms (the 36 rooms with which the instant Group C collateral security was created and the 2 rooms with which the instant Group A collateral security was created) of Songyang-ju building owned in Songyang-gu. The distribution court filed a lawsuit against the Defendant on the distribution schedule by each of the following parties: (a) among the amounts to be actually distributed on the distribution dates on the date of distribution between February 12, 2013 and March 12, 2013, the pertinent seizure authority, small amount lessee, and the 1,608,205,161 won (the 1st distribution), and the 162,457,379 won (the 2nd distribution) and the 162,47,379 won (the 2nd distribution), which were all distributed to the Defendant and the Defendant’s entire creditors; and (b) the Plaintiffs did not pay dividends to the Plaintiffs. The Plaintiffs filed a lawsuit against each of the instant distribution schedule against the Defendant.

2. Determination as to the assertion of misapprehension of legal principles as to cumulative collateral security and subrogation of repayment (ground of appeal Nos. 1 and 3)

A. In a case where the parties to a collective security agreement establish a number of real estate to secure the same claim arising out of a single basic agreement and take the form of individual collective security agreement, not in the form of the joint collateral security agreement, to obtain a preferential repayment of the aggregate amount of the maximum debt amount, such collective security agreement constitutes a collective collateral security agreement, not the joint collateral security governed by Article 368 of the Civil Act, but the cumulative collateral security agreement. Such cumulative collateral security agreement does not overlap with the scope of the joint collateral. As such, a creditor who has the cumulative collateral security agreement may exercise multiple joint collateral security agreements at the same time, and even one of the several joint collateral security agreements, a creditor who has the cumulative collateral security agreement may exercise the right to obtain a preferential repayment within the scope of the maximum debt amount, by exercising the remaining collective security agreement within the scope of the maximum debt amount.

B. In a case where a creditor has been granted a cumulative collateral security on a real estate owned by a debtor and a real estate owned by a person who has pledged his/her property to secure the same claim arising from a single basic contract, and the creditor has first been paid out of the proceeds of sale, the person who has pledged his/her property to secure his/her property can exercise his/her right to indemnity against the debtor at the same time as he/she has acquired the right to indemnity against the debtor, and at the same time he/she has already been held by the previous creditor pursuant to Articles 481 and 482 of the Civil Act. In this case, the person who has pledged his/her property to secure his

1) The cumulative collateral security is aimed at securing the same secured claim arising out of a single basic contract. On the contrary, if the parties set the secured claim by dividing it into several claims at the time of setting the right to collateral security, this is in itself an individual collateral security for securing separate claims, and cannot be deemed as a cumulative collateral security. Although the cumulative collateral security does not overlap with the scope of each secured claim, it cannot be deemed that the secured claim is automatically divided by each secured claim on the ground that it does not coincide with each other. This is because the cumulative collateral security is contrary to the intent of the parties who set the right to make a cumulative collateral that seeks to obtain a preferential repayment by executing the whole or part of the same secured claim freely until the lapse

The same applies to cumulative collateral security established on real estate owned by a debtor and real estate owned by a person who has pledged his/her property to secure another's property. Therefore, when a person who has pledged his/her property to secure another's property is subrogated to a creditor with repayment, it is a right to secure a claim that can be exercised

2) Article 481 and Article 482 of the Civil Act provides that a person who makes a subrogation may exercise a creditor’s claim and a security right to such claim shall effectively guarantee the satisfaction of the obligee’s right to indemnity against the obligor. A person who has pledged his/her property to secure another’s property will expect and provide his/her property as a security. If the amount of claims secured by cumulative collateral is less than the aggregate amount of each maximum debt amount, the person who has pledged his/her property to secure another’s property will be entitled to the highest liability through subrogation, etc. and will provide a security (where the amount of claims secured by cumulative collateral is larger than the aggregate amount of each maximum debt amount, only the creditor will be satisfied from all collateral, and there is no room for recognition of subrogation of the person who has pledged his/her property to secure another’s property). Since a mortgage is established later, the expectation interest of the person

3) On the other hand, cumulative collateral security is registered in the form of an individual collateral security rather than a joint collateral security, and thus, a junior mortgagee on the real estate owned by the debtor becomes aware of the remainder remaining after subtracting the maximum debt amount of the senior collateral security from the exchange value of the relevant real estate as the collateral value and acquire the mortgage. Therefore, even if subrogation is granted to the surety within the maximum debt amount of the senior collateral security, it cannot be deemed as infringing

C. We examine the facts in light of the aforementioned legal principles.

In order to secure the claim for the loan of this case as a collateral and set up the instant A, B, and C Group collateral, respectively. However, the Mau Mutual Savings Bank, based on the instant Group B’s collateral, was paid part of the instant loan by exercising the subrogation right on the compensation for the acquisition of the Plaintiffs’ real estate under the instant group B’s collateral, and the Plaintiff 1 subrogated for part of the instant loan to the Mau Mutual Savings Bank in order to postpone the execution of the instant Group A’s collateral on one’s own real estate. Thus, the Plaintiffs can exercise the instant loan together with the Mari-Mz.’s successor to the Mai Mutual Savings Bank, which was held by the Mau Mutual Savings Bank by subrogation, to secure the claim for the loan of this case.

Furthermore, Plaintiff 1 is also a joint and several surety for the entire claim for the loan of this case, and each of the above repayment constitutes the repayment of joint and several surety, and Plaintiff 1 is also a joint and several surety, and thus, Plaintiff 1 is also a joint and several surety.

Therefore, in the auction procedure of this case, if there is any remainder of the maximum debt amount set forth in the instant B and C Group collateral, the Plaintiffs may be preferentially apportioned to the Defendant, who is a subordinate mortgagee, within the scope of the Plaintiffs’ right to indemnity.

In this regard, the lower court determined that the Plaintiffs could exercise the right to collateral security in this case and C Group, and that the Defendants could be preferentially apportioned to the Defendant within the remainder after deducting the amount distributed to IMNN from each maximum debt amount of the said collateral security. Such determination by the lower court is justifiable in accordance with the legal doctrine as seen earlier. In so determining, the lower court did not err by misapprehending the legal doctrine on cumulative collateral security and subrogation, contrary to what is alleged in the grounds of

3. Determination of incomplete hearing as to the calculation of dividend amount (ground of appeal No. 4)

The lower court determined that the Plaintiffs could apply for distribution by freely allocating the amount of claims to be apportioned to them to real estate within the scope of the remaining maximum debt amount of each right to collateral security, as well as the amount of subrogated payment, which is the principal of each right to indemnity of the Plaintiffs, inasmuch as the sales proceeds remaining after the payment of the proceeds from the sale of each right to collateral security, which the

Examining the relevant legal principles and records, the lower court did not err in its judgment by failing to exhaust all necessary deliberations as to the calculation of the amount of dividends, contrary to what is alleged in the grounds of appeal.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-hee (Presiding Justice)