Whether the unlawful disposal of mortgaged real estate and the establishment of tort

If a secured party disposes of mortgaged real estate, it should be disposed of at an appropriate price by fulfilling the duty of due care of a good manager as a person who manages another person's real estate. The disposal at a price significantly lower than the market price constitutes a tort caused by negligence, since it constitutes a case where a breach of the duty of due care of a good manager causes

Article 750 of the Civil Act

[Plaintiff-Appellant] 73Da69 decided Jun. 5, 1973 (Supreme Court Decision 10455, Supreme Court Decision 21Na51 decided Jun. 5, 1973)

Plaintiff

Defendant 1 and one other

Busan District Court (78Gahap1387)

All appeals and incidental appeals are dismissed.

Expenses for appeal shall be borne by the defendants and incidental appeal by the plaintiff.

The part against the plaintiff in the original judgment shall be revoked.

The Defendants jointly and severally pay to the Plaintiff the amount of KRW 4,362,073 (the expansion of the claim in the trial) and the amount at the rate of five percent per annum from November 13, 1978 to the full payment day.

The costs of lawsuit shall be assessed against the Defendants in both the first and second instances, and provisional execution thereof shall be declared.

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

1. Occurrence of liability for damages;

On January 22, 197, the Plaintiff borrowed 5,00,00 won from the Defendants, 30% per month, 4.22, and the due date for payment shall be April 7, 197, and 39 square meters per annum 15204, 15204, and 1.20 square meters per annum 7, 197, 70, 197, 70, 197, 70, 197, 197, 197, 30, 197, 197, 40, 197, 197, 197, 197, 197, 30, 197, 197, 197, 300, 197, 197, 197, 197, 20, 300, 197, 197, 203, 15,

Therefore, the defendants' disposal of the real estate in this case to the non-party 3 and 4 is lawful. However, when the secured party disposes of the real estate in order to satisfy the claims, it shall be disposed of at an appropriate price with the duty of due care as a manager of the other party's real estate, and there is any balance remaining after deducting the principal and interest of the secured claim and expenses necessary to enforce the secured right from the disposal price. As seen above in this case, the defendants' disposal of the secured real estate in this case at a price significantly lower than the market price as seen above constitutes a joint tort due to negligence in relation to the plaintiff as a good manager. Thus, the defendants are jointly and severally liable to compensate the damages suffered by the plaintiff. Meanwhile, according to the above evidence, since the plaintiff did not pay interest rate after six months or longer, and thus, it cannot be acknowledged that the defendants disposed of the above secured real estate to the non-party non-party non-party 1, the defendants' disposal of the real estate in this case can be deemed to have been rejected without the plaintiff's testimony.

2. Scope of damages.

If Gap's evidence No. 9 without dispute over the establishment is gathered with the whole purport of pleading, the amount of secured debt secured by the real estate of this case includes all the expenses (the tax on the real estate of this case to be borne by the defendant) due to the exercise of the security right in addition to the above principal and interest on the debt, and the amount of 10,495,800 won at the reasonable market price at the time of the disposal of the real estate of this case as seen earlier. As such, after October 18, 1977, the defendants disposed of the real estate of this case, as sought by the plaintiff as of November 22, 197, it is as follows:

(a) Loan principal: 5,000,000 won in money;

B. Interest: (a) as mentioned earlier, the agreement on the rate of 3% per month between the plaintiff and the defendant was reached at 5%; (b) however, the agreement on the rate of exceeding the limit of the Interest Limitation Act is null and void; (c) so it is apparent that if the interest rate for 212 days is calculated from April 25, 197 to November 22 of the same year by calculating the interest rate for 212 days, it is 726,027 won (5,00,000x (25/100), which is less than 212/365).

C. Registration costs, introduction fees, and acquisition tax: Each evidence Nos. 10, 12 (each receipt), No. 13-1, 2 (Public Certificate of Amount, and Receipt) No. 13-2 (Receipt), the Defendants paid the amount of KRW 207,700 with registration costs, and KRW 121,718 with acquisition tax in the name of the Defendants in carrying out the principal registration procedure in the name of the Defendants with respect to the real estate in this case for the exercise of security rights. In other words, in selling the real estate in this case to Nonparty 3, etc., the Defendants paid KRW 20,000 with its introduction costs, and there is no other counter-proof. The above costs are recognized as considerable costs for the exercise of security rights.

D. Defendant 1 asserted that, in addition to the registration fees, etc. for the above recognition, 50,000 won should be paid mutually to Nonparty 3, who is the purchaser on February 3, 1978, in addition to the above recognition registration fees, etc., since 40,000 won was paid in the course of the real estate disposition, such money should also be included in the secured debt amount, since 40,000 won was paid in the tea value, meal expenses, etc. in the course of the real estate disposition of this case. However, the above 50,000 won payment in the previous 50,000 won is groundless in the assertion itself, and it cannot be recognized that 40,000 won was paid in the above difference value, meal expenses, etc. by the defendants' prior living.

Therefore, as of November 22, 197, when deducting 6,255,445 won (5,000 + 726,000 + 727,027 + 207,700 + 121,718 + 200,000) of the total amount of principal and interest on secured debt and expenses recognized earlier at the pertinent market price of the instant real estate as of 10,495,80 won, the balance of settlement shall be KRW 4,240,355 of the above amount. In consideration of the Plaintiff’s negligence, the amount to be compensated by the Defendants to the Plaintiff shall be determined as KRW 1,80,000 of the above amount.

3. Conclusion

Therefore, the defendants are jointly and severally liable to pay to the plaintiff the damages for delay at the rate of five percent per annum under the Civil Act from November 13, 1978 to the full payment date as claimed by the plaintiff, as a result of the disposition of real estate in this case and the amount of money 1,800,000 won to the plaintiff. Thus, the plaintiff's claim in this case is justified within the scope of the above recognition and it is unfair to dismiss the remainder of the claim.

Therefore, since the original judgment that shares the same conclusion is justifiable, the defendant's appeal and the plaintiff's incidental appeal are dismissed in accordance with Article 384 of the Civil Procedure Act, and the burden of litigation costs is decided as per Disposition by applying Articles 95, 89, and 93 of the Civil Procedure Act.

Judges fixed ticket (Presiding Judge) Mobile Engines