Teyn Loan Co., Ltd. (limited to the rights of attorney Lee In-bok, Counsel for defendant-appellant)

Defendant 1 and two others (Attorney Cho Jae-tae, Counsel for the defendant-appellant)

March 12, 2014

1. The attached list real estate shall be sold to the plaintiff, defendant 1, and defendant 2 in proportion to 2/9 and 3/9, respectively, after deducting the costs of the auction from the proceeds of the auction to the auction.

2. The costs of lawsuit shall be borne by each person;

The same shall apply to the order.

1. Basic facts

A. The Plaintiff filed an order for payment with the Seoul Central District Court 2012 tea19185 against Nonparty 1. On April 4, 2012, the above court issued an order for payment (hereinafter “instant order for payment”) stating that “Non-Party 1 shall not exceed KRW 180,00,000 to the Plaintiff, Non-Party 2, jointly and severally with Non-Party 2, KRW 30,530,370, and KRW 24,042,634 per annum from April 17, 2012 to the date of full payment (hereinafter “the instant order for payment”). The instant order for payment was finalized on May 1, 2012. According to the instant order for payment, the Plaintiff has a total of KRW 30,530,370 and KRW 24,00 to Non-Party 1’s bonds with interest and interest as of June 13, 2013.

B. On June 8, 2009, Nonparty 1’s father Nonparty 3 died, and on June 7, 2009, the real estate listed in the attached list (hereinafter “instant real estate”) was owned by Nonparty 3, upon the Plaintiff’s subrogation application based on the instant payment order, the registration of ownership transfer based on inheritance was filed against Defendant 3, who is Nonparty 3’s spouse, 3/9, Defendant 1, Defendant 2, and Nonparty 1 on June 7, 2013, respectively.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 through 4 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Judgment on whether the partition of co-owned property is available

A. As to the cause of the claim

1) The obligee may exercise the obligor’s right on behalf of the obligor in order to preserve the obligor’s claim. Thus, the obligee may exercise the obligee’s right on behalf of the obligor, barring special circumstances, such as where the obligee’s right to preserve is closely connected with the obligor’s right to exercise the obligor’s right in subrogation, and where it is necessary to ensure that the obligee’s exercise of the obligee’s right in subrogation is valid and appropriate to ensure the obligor’s right in subrogation, and where it is necessary to exercise the obligee’s right in subrogation, the obligee may exercise the obligee’s right in subrogation of the obligor’s right, barring special circumstances such as the obligor’s right to exercise the obligee’s right in subrogation

2) In light of the aforementioned legal principles, barring any special circumstance, the Plaintiff may seek a partition of the instant real estate by exercising the right to claim partition of co-owned property held by Nonparty 1 against the Defendants in order to preserve the claim based on the instant payment order against Nonparty 1.

B. As to the defendants' assertion

1) A) The Defendant asserts that the Plaintiff’s claim for partition of co-owned property as to the entire real estate of this case constitutes abuse of rights, since the Plaintiff may apply for compulsory auction only to Nonparty 2-9’s share among the real estate of this case and obtain satisfaction of the claim.

B) In the event of an auction of shares in jointly owned property, the minimum sale price should be determined on the basis of the total appraised value of the jointly owned property (Article 139(2) of the Civil Execution Act), and in the event that a mortgage is created on the jointly owned real property for the same claim, each co-ownership is established as a joint mortgage relationship with respect to each co-ownership, barring any special circumstances (see Supreme Court Decision 2005Da44091, Jun. 15, 2006).

C) According to the overall purport of the pleadings, the fact that there is no dispute, Gap's evidence Nos. 3 through 9, Eul's evidence Nos. 1 and 2, the fact inquiry about the permanent agricultural cooperatives of this court, ① The real estate of this case is established with the maximum debt amount of February 21, 2007, the debtor's non-party 3 and a permanent agricultural cooperative. The secured debt of the above secured mortgage was 30,148,898, ② The credit guarantee fund with the indemnity claim against non-party 1 was 05,205, 20297, 100, 209, 207, 300, 209, 306, 196, 209, 306, 209, 306, 19, 206, 19, 306, 19, 206, 19, 2013, 306, 9, 136, 206, 136.

D) In light of the above legal principles and the above facts, even if the plaintiff applies for compulsory execution only against the non-party 1-2/9’s share, it is highly probable that the auction procedure may be revoked pursuant to Article 102 of the Civil Execution Act, as the minimum sale price of the share of the non-party 1 did not reach the secured claim of the right to collateral security secured by the said share or the claim preferential to the plaintiff’s general claim (actually, this court’s compulsory auction procedure was revoked on January 15, 2014 pursuant to Article 102 of the Civil Execution Act). On the contrary, if the plaintiff executes compulsory execution against the whole real estate of this case, the amount of the secured claim is divided in proportion to the share value of the non-party 1 and the defendants in the distribution procedure in accordance with Article 368(1) of the Civil Act on joint mortgages and simultaneous dividends.

E) Therefore, even if the Plaintiff did not apply for a compulsory auction only for Nonparty 1-2/9’s share, it is difficult to view it as an abuse of rights even if Nonparty 1 exercised the right to partition of co-owned property against the Defendants, who are other co-owners. Therefore, the above assertion

2) In addition, the Defendants asserted that the instant real estate constitutes abuse of rights, but the Plaintiff’s claim for partition of co-owned property in this case is difficult to be deemed as abuse of rights, on the ground that the Plaintiff’s mother was living in several hundreds. In the wind of unilaterally completing inheritance registration by subrogation of Nonparty 1, the heir did not have any possibility to consider the contributory portion, the agreement on division of inherited property, and the renunciation of inheritance by Nonparty 1.

Rather, as seen in paragraph (1) above, the Plaintiff appears to have no means to secure effective and appropriate performance of its claim, except for the measures to sell the entire real estate at auction and distribute it simultaneously. The Plaintiff’s exercise of the right to partition of co-owned property by subrogation of Nonparty 1 cannot be deemed as an unjust interference with Nonparty 1 or the Defendants’ act of free property management. Thus, the above assertion by the Defendants is without merit.

3. Judgment as to the partition of co-owned property

A. In principle, a partition of co-owned property by judgment shall be made in kind or in kind, if it is impossible to divide it in kind or even if it is possible in kind, if the price is likely to decrease substantially, the auction of the co-owned property shall be ordered, and the price shall be divided. Here, “the price decreases substantially due to the division in kind” shall include not only the case where the exchange value of the co-owned property is significantly reduced due to the division in kind, but also the case where the price of the property to be owned by the co-owners is significantly reduced considerably than the share price before the partition in kind even if the co-owned property is not divided in kind. Thus, even if it is possible in kind, in light of the location, area and surrounding circumstances of the co-owned property, use value, price, share ratio of co-owner's ownership and use and profit-making status, etc., if the share of co-owners can not be divided in kind according to the share ratio of co-owner's ownership, not the method of the partition in kind, but also the method of the partition in kind (see Supreme Court Decision 2002Da4202.

B. The real estate of this case is a house and its site, so it is difficult to divide it in kind due to its nature, or its value is likely to be significantly reduced due to its division. The creditor who vicariously exercises the right to receive payment of money is entitled to receive a direct share of the money. Thus, it is reasonable to divide the sale price of this case by selling it for auction.

C. Therefore, upon the Plaintiff’s request, it is reasonable to distribute the amount remaining after deducting the auction cost from the proceeds from the sale price to the auction to the Plaintiff 2/9, Defendant 1, and Defendant 2, respectively, to the Plaintiff who filed the instant claim in subrogation of Nonparty 1 in order to preserve the claim against Nonparty 1.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition.

Judges Lee Dong-hwan