[1] The method of determining whether the principal obligation secured by the collateral security and the collateral security are separate obligations in a case where the same person made a collateral guarantee for an unspecified obligation arising from a continuous transaction and made a collateral guarantee by means of the establishment registration of a neighboring mortgage in order to secure such an unspecified obligation

[2] The case holding that where a third party registered the establishment of a collateral on his own real estate to secure an unspecified debt for the debtor's creditor, and entered into a collateral guarantee contract within the next day, the principal debt secured by the collateral and the collateral guarantee are not separate debt but the amount of the debt is limited to the maximum debt amount of the collateral security and the maximum debt amount of the collateral guarantee

[3] The case holding that the mortgagee shall return the amount equivalent to the excess dividend to the owner of the mortgaged property, in case where a junior mortgagee who received a dividend in excess of the secured debt did not receive a dividend, and where the owner fully pays the tax debt, the mortgagee shall return the amount equivalent to the excess dividend as unjust enrichment

[1] In a case where the same person has made a real guarantee by registering the establishment of a mortgage in order to secure an unspecified debt, the issue of whether the secured debt of the right to collateral security and the secured debt of the right to collateral security are separate or separate from the secured debt of the right to collateral security, and otherwise, the issue of whether the secured debt of the right to collateral security and the obligation guaranteed by the right to collateral security are guaranteed by the said right to collateral security is a matter of interpretation of the intent of the contracting parties.

[2] The case holding that in the event that a third party registered the establishment of a collateral on his own real estate to secure an unspecified debt for the debtor's creditor and entered into a collateral guarantee contract within the next day, the principal debt secured by the collateral security and the collateral security are not separate debt but the amount of the debt is limited to the maximum debt amount of the collateral security and the maximum debt amount of the collateral security.

[3] The case holding that in a case where a junior mortgagee who received a dividend in excess of the secured amount has not received a dividend, the mortgagee shall return the amount equivalent to the excess dividend to the owner of the object of auction and in a case where the owner fully pays the tax liability, the mortgagee shall return the amount equivalent to the excess dividend to the owner

[1] Articles 105, 357, and 428 of the Civil Act / [2] Articles 105, 357, and 428 of the Civil Act / [3] Article 741 of the Civil Act

[1] Supreme Court Decision 82Meu1772 delivered on July 26, 1983 (Gong1983, 1327)

Plaintiff 1 and one other (Attorney Lee Jae-soo, Counsel for the plaintiff-appellant)

KDB Fund Board Co., Ltd. (Attorney Kim Il-hun, Counsel for the defendant-appellant)

Seoul High Court Decision 2004Na27589 delivered on December 15, 2004

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

In a case where a person has made a collateral guarantee to guarantee future debt incurred from a continuous transaction and the same person has made a collateral guarantee by establishing a mortgage to secure such unspecified debt, the issue of whether the secured debt of the right to collateral security and the secured debt of the right to collateral security are separate or separate from the secured debt of the right to collateral security, and otherwise, the issue of whether the secured debt of the right to collateral security and the secured debt of the right to collateral security are guaranteed by the above collateral security is an issue of interpretation of the intention of the contracting party (see Supreme Court Decision 82Meu172 delivered on July 26, 1983).

According to the evidence of the court below, the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 4 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the defendant 2 and the non-party 1 and the defendant 1 and the non-party 1 and the defendant.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error in the misapprehension of legal principles as to the identity of the secured debt of the right to collateral security and the principal debt of the right to collateral security, as alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

The lower court, based on its adopted evidence, found that Nonparty 2 received and retained all documents necessary for the registration of transfer of ownership of the instant real estate from the deceased non-party 1 to secure 450,000 won against the deceased non-party 1, as stated in its reasoning, prior to the date of the instant loan agreement. Meanwhile, upon the non-party 2’s default around 1995 and failure to repay the discounted loan amount based on the instant loan agreement, the Gyeonggi Bank demanded the Plaintiffs (the deceased non-party 1’s heir) to repay the discounted loan amount based on the instant loan agreement, and tried to hold a voluntary auction on the instant real estate in 90,000,000 won for the instant real estate, and determined that Non-party 2 was at the risk of auctioning the instant real estate, and that it was 60,000,000 won for each of the instant loans extended to the Gyeonggi Bank’s first 60,000 won for the purpose of collecting the loans to the deceased non-party 1’s high school members.

As acknowledged by the court below, the Socsan industry, the primary debtor, has already been insolvent; therefore, the Gyeonggi Bank, the creditor of the creditor, is expected to have the ability to recover the existing loan without granting additional credit to the Socsan industry; where the Gyeonggi Bank urged the plaintiffs, the heir of the deceased non-party 1, who was the founder of the right to collateral security in this case, to repay the secured debt in this case, and refused to comply therewith, it was intended to enforce the right to collateral security in this case; at that point, Non-party 2 proposed voluntary repayment that he would pay 645,00,000 won, which is the maximum amount of debt of the right to collateral security in this case, shall be paid in installments; and it was agreed or consented by the Socsan industry and the Gyeonggi Bank; however, the non-party 2 was not the primary debtor or joint guarantor of the loan in this case or the collateral security in this case, and there is no error in the misapprehension of the legal principles as to the secured debt amount and the secured debt amount in this case, as alleged in the ground of appeal No. 6000.

3. As to the third ground for appeal

Then, the court below acknowledged the fact that the defendant received dividends in the voluntary auction procedure for the real estate of this case under the evidence adopted by the defendant (the collateral security right of this case and the collateral obligation of this case) in order of 505,059,892. The remaining collateral obligation of this case is 318,759,000 won which was discharged by non-party 2 from the maximum debt amount of this case. Since the defendant received dividends in excess of 5,05,09,892 won, the court below rejected the plaintiff's assertion that it was improper for the defendant to receive dividends in the above 186,30,300,892 won since the defendant did not receive dividends in excess of the remaining collateral obligation amount in the above voluntary auction procedure. The court below rejected the plaintiff's assertion that there was no error in the misapprehension of the legal principles as to the distribution schedule of this case's remaining collateral obligation of this case, since the defendant did not receive damages from the defendant's dividends in the above voluntary auction procedure. The plaintiff's allegation that it did not have suffered damages from the above 90101.

4. Conclusion

Therefore, the appeal is 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.

Justices Yang Sung-tae (Presiding Justice)