Plaintiff (Law Firm Han, Attorneys Lee Jae-in et al., Counsel for plaintiff-appellant)

Han Bank Co., Ltd. and one other (Law Firm Shin & Lee, et al., Counsel for the plaintiff-appellant)

An independent party intervenor (Attorney Song-young et al., Counsel for defendant-appellant)

July 4, 2014

Daejeon District Court Decision 2012Gahap7179, 2012Gahap32762 decided August 21, 2013 (Intervention)

1.In accordance with the selective claims added at the trial of the first instance concerning the principal action, the following modifications shall be made:

Defendant Han Bank Co., Ltd. will implement the registration procedure for collateral security transfer based on the entire secured claim on June 23, 2014, with respect to each real estate listed in the attached list, KRW 1,200,000,000, out of the maximum debt amount of KRW 2,280,000,000, which was completed by the Daejeon District Court No. 13791, Feb. 14, 201.

2. The plaintiff's remaining claims and the plaintiff's independent party's claims for cancellation of registration of establishment of a mortgage on the root of paragraph (1) are dismissed, respectively;

3. The plaintiff shall bear 40% of the total costs of the lawsuit due to the principal action, the remainder shall be borne by the defendant Han Bank, and the part arising out of the total costs of the lawsuit due to the participation shall be borne by the independent party intervenor.

1. Main elements;

A. Purport of claim

As a matter of course, Defendant Han Bank Co., Ltd. (hereinafter “Defendant Han Bank”) decided that, with respect to the registration of creation of a collateral in the preceding place of the order of Paragraph (1), Defendant Han Bank’s registration on the ground of subrogation by the reimbursement on June 28, 2012 to Nonparty 2 (the deceased Nonparty 1’s administrator of the inherited property; Nonparty 2’s administrator of the inherited property of the deceased’s administrator of the inherited property; the administrator of the inherited property of the deceased’s administrator of the inherited property on June 28, 2012 or on June 23, 2014, the Plaintiff performed each procedure for the registration of establishment of a collateral security (the Plaintiff’s administrator of the inherited property), on June 23, 2014, with respect to the registration of establishment of a collateral in the preceding part of Paragraph (1) of this Article, the Plaintiff performed the procedure for the registration of establishment of a collateral security on the ground of all secured claims (the Plaintiff changed the Plaintiff’s claim as stated in the former part of the claim as follows.

B. Purport of appeal

The judgment of the court of first instance is revoked. With respect to the registration of establishment of a neighboring establishment mentioned in paragraph (1) of this Article, the defendant bank will implement the registration procedure on June 28, 2012 for the administrator of inherited property of the deceased, and the administrator of inherited property of the deceased to the plaintiff on June 1, 2012 for the plaintiff, respectively.

2. Intervention by an independent party;

The defendant bank will implement the procedure for each cancellation of the registration of the establishment of a superficies on July 26, 2004, received on July 26, 2004 by Daejeon District Court, No. 75306, received on April 6, 2007, and completed under No. 31851, received on April 6, 2007, and the registration of the establishment of a superficies on February 14, 2001, received on February 14, 2001 by an independent party intervenor (hereinafter referred to as the "participating").

1. Scope of adjudication;

A. The Plaintiff filed a claim for the implementation of the registration procedure on the right to collateral security stated in the Disposition No. 1 with the purport of the claim and the trial of the first instance. The Intervenor filed a claim for the implementation of the registration procedure on the cancellation of two of the registration of the right to collateral security and the right to collateral security registered in sequence with regard to each real estate listed in the separate sheet, as well as the right to collateral security stated in the Disposition No. 1.1. The court of first instance dismissed the Plaintiff’s claim and accepted the Intervenor’s claim, and only the Plaintiff

B. In accordance with Article 79(1) of the Civil Procedure Act, when rendering a judgment on the merits of a lawsuit between the plaintiff and the defendant and the intervenor, a final judgment shall be rendered with the name of the above three parties, and a single final judgment shall be made between the above three parties. In a case where one party appeals against such judgment on the merits, the final judgment of the first instance court shall be interrupted, and the whole case shall take effect (see Supreme Court Decision 2006Da86573, 86580, Oct. 26, 2007).

However, under Article 407 of the Civil Procedure Act, the subject matter of adjudication by the appellate court shall be deemed to be limited to the scope of objection expressed in the purport of the appeal by the person who actually filed the appeal, and the judgment on the part of the intervenor's claim, which was not filed or not filed only to the extent necessary for the confirmation of the unity of the conclusion between the plaintiff and the defendant, and the intervenor, shall be determined, and a judgment unfavorable to the intervenor may be rendered (see Supreme Court Decision 2007Da3776, 3783, Dec. 14, 2007).

C. In the instant case, since the part against the Plaintiff was appealed, the subject of the judgment of this court is limited to the part against the Plaintiff’s principal lawsuit, the subject of the judgment of this court is limited to the part against the Plaintiff’s principal lawsuit. However, since there is a possibility of inconsistency in the judgment between the judgment of the Plaintiff’s claim and the judgment of the first instance court in favor of the Intervenor on the right to collateral security stated in paragraph (1) of the order related thereto, the part of the Intervenor’s participation is to be determined within the extent that it is necessary to determine the consistency

2. Basic facts

A. As to each of the instant real estate owned by the deceased (hereinafter “each of the instant real estate”), the Defendant bank established the maximum debt amount as indicated in Paragraph (1) of this Article (hereinafter “the instant real estate”) with respect to the instant real estate as indicated in the attached list owned by the Intervenor (hereinafter “each of the instant real estate”), as to the instant real estate (hereinafter “the instant real estate”) as indicated in the Disposition No. 1 (hereinafter “the entire collateral security”) and the instant real estate owned by the Deceased and the Intervenor as to the real estate (hereinafter “the instant real estate”), (2) as to the Daejeon District Court Decision No. 75306, Jul. 26, 2004; (3) as to the maximum debt amount1,200,000,000 won; and (4) 3,045,000 won as to each of the instant real estate (hereinafter “the Deceased’s maximum debt amount”).

B. The deceased, on April 3, 2008, completed the establishment registration of a mortgage of KRW 3,000,000 with respect to each real estate owned by the deceased on April 3, 2008, under the same court No. 32376, but registered the alteration of the right to collateral security (hereinafter “Plaintiff’s right to collateral security”) with the same court No. 36349, April 14, 2008, changing the maximum debt amount to KRW 1,200,000,000 with respect to each real estate owned by the deceased.

C. On May 11, 201, the Defendant bank filed an application for voluntary auction with the Daejeon District Court for each of the real estate owned by the Deceased. On June 28, 2012, the Defendant bank received KRW 1,536,497,259 as the first mortgagee against the Intervenor at the auction procedure (hereinafter “instant auction procedure”) around 2011 at the same court on June 28, 2012, and KRW 2,236,185,667 as the claimant’s creditor against the Deceased and the second creditor as the third mortgagee, respectively. In addition, on June 28, 2012, the Defendant bank received reimbursement from the Intervenor all of the secured claims of each of the instant paragraph (a) at the level of KRW 708,239,264 by subrogation.

D. The Plaintiff filed an application with the Daejeon District Court for the attachment and assignment order of the claim on the ground that the Plaintiff’s subrogation right based on the right to collateral security was exercised. On June 20, 2014, Daejeon District Court issued the attachment and assignment order of the claim regarding KRW 1,200,000 among the claims of KRW 1,536,49, and KRW 259, which the Deceased was the administrator of inherited property of the Defendant Deceased, the garnishee, and the third obligor’s intervenor at the auction procedure of the instant case, on the ground that the deceased subrogated for the third obligor’s obligation. The attachment and assignment order of the claim was served on the third obligor on June 23, 2014, and became final and conclusive as is July 3, 2014.

E. Meanwhile, the Deceased died on June 19, 201, and Nonparty 2 was appointed as an administrator of inherited property of the Deceased on September 26, 2012 by Nonparty 2.

[Reasons for Recognition] Facts without dispute, Gap evidence 2, 3, 5 through 9, 13, 14, Eul evidence 1, 2, 4, 1 and 4 (including the branch number)

3. The part concerning the Plaintiff’s selective principal claim

A. The relationship between the plaintiff and the intervenor

(1) The argument

(A) The plaintiff

The Defendant bank received the total amount of the secured debt during the instant auction procedure, which was filed only with respect to each real estate owned by the Deceased, a surety who has pledged his property to secure another’s property among the entire immovable property in the instant case, and thus, the Deceased acquired the right to indemnity against the Intervenor, at the same time, the Defendant bank subrogated and acquired the instant secured debt by subrogation. Meanwhile, the Plaintiff, a subordinate secured mortgage on each real estate owned by the Deceased, can substitute the instant secured mortgage in the Defendant bank, which was acquired by the Deceased on behalf of the Deceased, and was issued an assignment order of the said claim on the ground of the exercise of the subrogation right, the Defendant

(b) An intervenor;

As a result of the instant auction procedure’s distribution, even if the Deceased acquired the claim of KRW 1,536,49,259 for the amount of reimbursement against the Intervenor, the Intervenor also acquired the Deceased’s claim of KRW 1,212,193,220 for loans of KRW 1,350,000 for the amount of reimbursement, including KRW 708,239,264, which was subrogated, out of the deceased’s claim secured by the second and third collateral security right, and thus, the Intervenor’s claim shall be offset against the Intervenor’s claim. Ultimately, the instant collateral security right should be cancelled since all of the secured obligation of the instant case and the deceased’s claim for reimbursement against the deceased’s claim for reimbursement, and therefore, the Plaintiff’s assertion of subrogation right based on the Deceased’s claim for reimbursement against the deceased is groundless

(2) Determination

(A) Relevant legal principles

1) Where a subordinate mortgage is established on the real estate owned by the joint debtor and the real estate owned by the person who has pledged the property owned by the person who has pledged the property, the person who has pledged the property owned by the person who has pledged the property shall first sell the real estate owned by the person who has pledged the property to another person, and if the person who has pledged the property has been repaid the real estate by the payment of the auction price, the person who has pledged the property shall acquire the right to indemnity against the debtor and at the same time acquire the first mortgage on the real estate owned by the person who has pledged the property under the provisions of Articles 481 and 482 of the Civil Code, and in such a case, the person who has pledged the property owned by the person who has pledged the property to another person may obtain the first mortgage on the first one mortgage, and the mortgagee of the real estate owned by the person who has pledged the property owned by the person who has pledged the property shall not be registered for the cancellation of the first mortgage on the first one, but shall not file a claim for the registration of the mortgage to the person who has been extinguished.

2) On the other hand, even if a joint mortgagee takes up an auction on the real estate owned by a debtor among the real estate owned by a debtor and the real estate owned by a person who has pledged the property owned by a person who has pledged the property to secure another's property, the mortgagee on the real estate owned by the debtor may not exercise the mortgage on the real estate owned by the person who has pledged the property to secure another's property in subrogation of the joint mortgagee once pursuant to the latter part of Article 368(2) of the Civil Act (see Supreme Court Decision 2013Da20796, Jan. 2

(B) In the instant case, each real estate owned by the deceased, a surety, among the real estate subject to the entire collateral security in the instant case, was first put up for auction, and the fact that the Plaintiff was a subordinate mortgagee of each real estate owned by the deceased was

Therefore, the Deceased acquired the instant right by subrogation of the Defendant Bank, and the Plaintiff may substitute for the Defendant Bank’s instant right to collateral security on behalf of the Deceased. Thus, the registration of cancellation is not made with respect to the registration of establishment of the instant right to collateral security on behalf of the Deceased, but with respect to the registration of establishment of the right to collateral security on behalf of the Deceased, the supplementary registration for the transfer of collateral security on subrogation in the Deceased’s future should be completed. The Intervenor, who is the owner of each of the instant real estate not yet sold, was paid the total amount of the claim on the entire right to collateral security of this case by the Defendant Bank, or the Intervenor’s claim on the Deceased’s indemnity against the Intervenor’s claim against the Intervenor, as alleged in the foregoing set-off by the Intervenor, shall not be exercised with priority over the Plaintiff’s subordinated right,

(C) As seen earlier, the Intervenor asserts that the Intervenor, a surety’s surety’s surety’s surety’s surety’s surety’s secured debt of the Deceaseds Nos. 2 and 3 collateral security liability, on behalf of the Defendant Bank, paid KRW 708,239,264 to the Defendant Bank, and that the rights should be protected first than

However, even though the intervenor paid part of the secured debt of the deceased's second and third collateral security, and the plaintiff's right to collateral security falls under the fourth priority, the defendant bank has already exercised the security right to each real estate owned by the deceased, and since each of the real estate in this case is the real estate owned by the intervenor, it is not a situation where the intervenor may exercise by subrogation a separate security right that takes precedence over the plaintiff on the ground of subrogation. Therefore, the intervenor's above assertion is without merit.

B. As to the scope and exercise of the Plaintiff’s subrogation

(1) The part concerning the assertion of administrator of inherited property of Defendant Deceased

(A) The argument

The administrator of inherited property of Defendant Deceased asserts that the amount of the Plaintiff’s claim secured by the Plaintiff’s right to collateral security is merely KRW 150,000,000 (the Plaintiff’s claim exceeds KRW 150,000 and constitutes a false agreement between the Plaintiff and the deceased’s wife) and that the Plaintiff’s exercise of right should be restricted. Accordingly, the Plaintiff asserted that the amount of the Plaintiff’s secured claim is KRW 800,000,000, and that the Plaintiff’s principal and interest claim with the Plaintiff’s right to collateral security also

(B) Determination

The Plaintiff’s right to collateral security is presumed to meet the requirements for the cause of registration and the registration procedure, and comprehensively taking account of the evidence of the front line and the statements in Gap’s evidence Nos. 10 and 12 (including paper numbers), the Plaintiff may recognize the fact that the Plaintiff lent KRW 80,000,000 to the Deceased on June 22, 2007, at an annual interest rate of 36%.

However, only a part of the evidence No. 12 is insufficient to recognize that the above KRW 800,000,000 was partially repaid as asserted by the administrator of inherited property of the Defendant deceased, and there is no evidence to acknowledge otherwise. Moreover, there is no evidence to acknowledge that there was a false conspiracy between the Plaintiff and the wife of the deceased, and there is no circumstance that the Plaintiff should exercise the right only to a part that is not the whole maximum debt amount of the Plaintiff’s right to collateral security. Accordingly, the above assertion by the administrator of inherited property of the Defendant deceased is without merit.

(2) The part concerning the defendant bank's assertion

(A) The argument

The Plaintiff sought registration of the entire collateral security in the instant case, and the Defendant bank asserts that the scope of the Plaintiff’s registration of the transfer should be limited in light of the relationship with the lower-ranking mortgagee than the Plaintiff on each real estate owned by the Deceased.

(B) Determination

However, the scope of the Plaintiff’s subrogation rights should be within the scope of subrogated acquisition among the instant collateral security held by the Defendant bank by subrogation of the Deceased’s obligation by the Deceased on behalf of the Intervenor, and the exceeding part is not the subject of subrogation by the Plaintiff.

In addition, the amount that the deceased subrogated for the intervenor's obligation is KRW 1,536,49,259. The maximum debt amount of the entire right to collateral security of this case is KRW 2,280,000,000. The plaintiff's maximum debt amount of the right to collateral security of this case is KRW 1,200,000,000 among the claim for reimbursement against the intervenor's claim against the plaintiff on the ground of subrogation, the amount determined by the order of seizure and assignment among the above 1,536,49,259, which was 1,20,000,000 out of the claim for reimbursement against the intervenor on the ground of subrogation is as

Therefore, the plaintiff's subrogation on the above 1,200,000 won, for which the amount of secured debt of the right to collateral security of this case was issued among the right to collateral security of this case, which is 2,280,000,000 won as maximum debt amount, may be subrogated on the part exceeding the above 1,20,000,000 won. The remaining argument of the plaintiff is without merit.

(3) Sub-decisions

The plaintiff, as a method of exercising subrogation, received the attachment and assignment order of the claim amounting to KRW 1,200,000,000 among the claim for indemnity against the intervenor, and the above order became final and conclusive as it is.

Therefore, the above assignment order becomes effective on June 23, 2014, which was served on the intervenor who is the garnishee. As such, the defendant bank is obligated to complete the registration of transfer of the right to collateral security regarding KRW 1,200,000,000 among the instant collateral security that the deceased acquired on behalf of the plaintiff who is the entire right holder of the claim for indemnity against the intervenor.

4. Part of the intervenor's claim for participation;

A. The assertion

As stated earlier by the Intervenor, the Intervenor asserts that the right of recourse against the deceased’s claim should be cancelled due to the extinguishment of the secured claim, since it was set off against the Intervenor’s claim of recourse and loan.

B. Determination

(1) Of the maximum maximum debt amount of the instant right to collateral security, KRW 1,200,000

As examined in the part of the Plaintiff’s claim as seen earlier, the Plaintiff’s subordinate right to collateral security regarding KRW 1,200,000,000 among the maximum debt amount of the instant right to collateral security KRW 2,280,00,000 ought to be registered in the process of registering the transfer of the right to collateral security to the Plaintiff.

(2) Of the maximum maximum debt amount above, the remainder of KRW 1,080,000

The registration of cancellation is permissible where all the registered matters are inappropriate. However, with respect to the remaining portion of the maximum debt amount of the instant right to collateral security, excluding the Plaintiff’s secured debt amount of KRW 1200,000,000,000, as alleged by the Plaintiff, even if the secured debt was extinguished as alleged by the Plaintiff, it is not permissible to seek registration of cancellation of part of the registered matters under the Registration Act, as it is not allowed (except for the case where the Intervenor examines the method of registration procedure, etc. to reduce the maximum debt amount of the instant right to collateral security by integrating the relationship with the

(3) Therefore, the Intervenor’s above assertion that the instant right to collateral security should be cancelled is without merit without further review.

5. Conclusion

Therefore, the plaintiff's selective principal claim is justified within the scope of the above recognition, and the remainder is dismissed as there is no ground. Since the part of the plaintiff's claim in the judgment of the court of first instance is unfair as part of the conclusion, the plaintiff's selective addition is accepted in the trial. Since the part of the plaintiff's claim concerning the right to collateral security in this case needs to be decided jointly between the parties, the part of the plaintiff's claim in the judgment of the court of first instance is modified, and the plaintiff's claim is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Jeong Jae-hee (Presiding Judge)