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The judgment below
The part against the plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.
The defendant.
Reasons
The grounds of appeal are examined.
1. In light of the circumstances in its holding, the lower court determined that the Plaintiff’s ground of appeal on the Plaintiff’s ground of appeal: (a) the Defendant, who is not G, as a creditor, shall be deemed to have created the instant first and second collateral mortgage in order to secure the payment by taking over an obligation between I Co., Ltd. (hereinafter “I”) and F, or by borrowing money from the Defendant; and (b) furthermore, even if the Plaintiff paid KRW 2.2 billion to G as of April 25, 2008, the lower court rejected the Plaintiff’s ground of appeal on the ground that it is not clear whether the said KRW 2.2 billion was paid to G, including the secured debt of the instant first and second collateral mortgage; and (c) it is difficult to find any circumstance to deem that G was entitled to receive the payment on behalf of the Defendant
However, such judgment of the court below is hard to accept for the following reasons.
In the event that the establishment registration of a neighboring mortgage is conducted for the purpose of mortgage security, in principle, the creditor and the mortgagee should be the same person, but there was an agreement between the creditor, the debtor and the third party regarding the establishment registration of a neighboring mortgage with a third party who is not a creditor as the mortgagee, and further, there was an agreement between the creditor, the debtor, and the third party regarding the establishment registration of a neighboring mortgage with a third party as the mortgagee. Furthermore, there was no special circumstance that the establishment registration of a neighboring mortgage with a third party as the mortgagee could be considered as having been substantially reverted to the third party, or in light of transaction circumstances, the third party can be deemed as having a valid repayment of the debt from the debtor, and the debtor can also be deemed as having an indivisible relationship between the creditor and the third party who is the creditor and the mortgagee, the establishment
(Supreme Court Decision 2007Da23807 Decided May 15, 2008). Meanwhile, whether the assumption of an obligation is overlapping with the assumption of an obligation is a contract.