In a case where Gap paid the principal and interest of Eul's loan to Byung bank, and Byung bank cancelled the registration of creation of a neighboring mortgage, the case holding that Eul bank cannot claim the refund of the subrogated amount to Byung bank by applying Article 745 (1) of the Civil Act mutatis mutandis on the ground that it was difficult for Eul to preserve or exercise its claim against Eul by cancelling the right to collateral security, which is a security for its obligation, without knowledge that repayment would go against Eul's will, and thus, it was difficult for Byung to do so

Article 745(1) of the Civil Act

Plaintiff (Law Firm Law, Attorneys No Young-dae et al., Counsel for the plaintiff-appellant)

New Bank (Law Firm LLC, Attorneys Yoon Hong-san et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 201Na6600 decided August 17, 2012

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged the following facts based on adopted evidence: (a) the non-party 1 was granted a loan of KRW 300 million from the defendant on March 29, 2002; (b) on September 3, 2004, the plaintiff paid the principal and interest of loan of KRW 303,681,853 to the defendant at the time of the non-party 1's payment to the defendant on September 3, 2004; and (c) on behalf of the defendant, the defendant cancelled the right of collateral which the defendant created as to the land owned by the non-party 1 in good faith due to the plaintiff's subrogation, so the plaintiff cannot claim the return of the above subrogated amount pursuant to Article 745(1) of the Civil Act; (c) the plaintiff's defense that the plaintiff cannot claim the return of the subrogated amount pursuant to Article 745(1) of the Civil Act was paid by subrogation with the intent of the non-party 1's payment to the defendant.

2. However, we cannot agree with the judgment of the court below for the following reasons.

A. According to the reasoning of the judgment below and the record, the plaintiff was not transferred to Korea Cable Broadcasting Co., Ltd. from September 1, 2001 to July 1, 2006. The non-party 1 was the wife of the non-party 2, who was the representative director of the above company (Divorce on June 3, 2009), as the owner of the land in this case, which is the site of the above company's principal building from October 5, 199. The non-party 1 was loaned KRW 390 million from the defendant on March 29, 202, and the non-party 1 was the owner of the land in this case who was the principal office of the above company. The court dismissed the plaintiff's subrogation against the above non-party 1, who was the representative director of the above company, for the reason that the non-party 1 did not claim the return of the loan amount of the above company's principal and interest on the non-party 390 million won, and the court dismissed the above judgment against the defendant's subrogation.

In light of such factual relations, the Plaintiff, a third party without interest, repaid the Defendant’s debt to Nonparty 1, the obligor, but the Defendant, the obligee, knew that the Plaintiff’s repayment was effective without knowledge that it would go against Nonparty 1’s intent and became difficult to preserve or exercise the claim against Nonparty 1, the obligor, by cancelling the right to collateral security, which is the collateral security for the obligation. In such a case, Article 745(1) of the Civil Act is applied by analogy, and thus, the Plaintiff cannot claim the return of the subrogated amount to the Defendant

B. Nevertheless, the lower court rejected the Defendant’s defense and accepted the Plaintiff’s claim for return of unjust enrichment equivalent to the amount of subrogated payment. Therefore, the lower court erred by misapprehending the legal doctrine on Article 745(1) of the Civil Act or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)