Where a mortgage has been established in order to change the creditor's own real estate owned by a debtor who is the object of a joint mortgage and real estate owned by a person who has pledged the property owned by a person who has pledged the property, but the mortgagee has first sold the real estate owned by the person who has pledged the property and has been repaid once, whether a registration can be filed only on the ground that the owner of the property

Articles 341, 342, 368(2), 370, 481, and 482 of the Civil Act

Supreme Court Decision 93Da25417 Decided May 10, 1994 (Gong1994Sang, 1638), Supreme Court Decision 2001Da21854 Decided June 1, 2001 (Gong2001Ha, 1510), Supreme Court Decision 2011Da3066, 30673 Decided August 18, 201 (Gong201Ha, 1910)

Plaintiff (Attorney Lee Yong-soo, Counsel for plaintiff-appellant)

Mine Agricultural Cooperatives (Attorney Go-hee et al., Counsel for the plaintiff-appellant)

Defendant joining the Defendant (Attorney Noh Jeong-hee et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na68004 decided September 3, 2010

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief not timely filed by the Intervenor).

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 secure the property, and shall acquire the right to indemnity against the debtor at the same time by subrogation 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 secure the property to secure the property may obtain the preferential reimbursement from the first mortgage which has been transferred to the person who has pledged the property to the person who has pledged the property to secure the property first sold the property to the person who has pledged the property first, and the mortgagee of the property owned by the person who has pledged the property to secure the property can substitute the first mortgage on 10th 6th 10,000,0000 additional registration on the property acquired by the person who has pledged the property to secure the property.

2. The evidence and records duly adopted by the court below revealed that ① on June 13, 2005, the plaintiff agreed to set up a mortgage under the name of the defendant with respect to each of the instant real estate owned by the plaintiff and the non-party owned by the non-party as a security for the loan obligation, and accordingly, on the 22th of the same month, jointly with respect to each of the instant real estate and the non-party owned by the non-party, the amount of KRW 1.40 million was loaned from the defendant on June 28, 2005 (hereinafter "the loan of this case"), ② after the establishment of a mortgage under the name of the non-party was completed for the real estate owned by the non-party, the total amount of the loan of KRW 30 million to the defendant on April 26, 2007, and the establishment of a mortgage under the name of the non-party owned by the non-party was registered as the non-party-party-party-party-party-owned real estate under the name of the non-party-party-party-party-owned real estate.

3. Examining the above facts in light of the legal principles and relevant legal principles as seen earlier, the Nonparty, a surety, acquired the Defendant’s right to collateral security on each of the instant real estate owned by the Plaintiff, the obligor, by subrogation, within the scope of the amount exceeding his share of liability. The Defendant’s Intervenor, a subordinate mortgagee on real estate owned by the Nonparty, may subrogate the said right to collateral security acquired by the Nonparty. The said right to collateral security should be registered as a supplementary registration on the transfer of collateral security by subrogation in the Non-Party’s future. Therefore, the Plaintiff, the owner of each of the instant real estate, who was the owner of each of the instant real estate, cannot seek cancellation of the registration on the establishment of collateral security solely

Nevertheless, based on the circumstances stated in its reasoning, the lower court determined that, solely on the grounds that the principal debtor is the Nonparty and the Plaintiff is the Nonparty, the Nonparty cannot acquire each of the instant collateral by subrogation of the person who performed the obligation and that the subordinate mortgagee with respect to the real estate owned by the Nonparty may not be capable of subrogation. In so doing, the lower court erred by misapprehending the legal doctrine on subrogation of the person who performed the obligation to secure another’s property and subrogation of the subordinate mortgagee, thereby adversely affecting the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok-soo (Presiding Justice)