[1] The purport of Article 482 (2) 1 and 2 of the Civil Code that even though the third party purchaser recognizes the right of subrogation to the guarantor, the third party purchaser cannot subrogate the creditor to the guarantor, and whether the third party purchaser is included in the subordinate mortgagee of the third party under Article 482 (2) 2 of the Civil Code (negative)

[2] Whether the “third party” under Article 482(2)1 of the Civil Act includes a subordinate mortgagee (negative)

[1] The reason why Article 482(2)1 and 2 of the Civil Code recognizes the right of subrogation to the guarantor, while the third acquisitor is unable to subrogate the creditor to the guarantor, is because the third acquisitor is not likely to incur unexpected damages due to the exercise of the right of collateral. In addition, the third acquisitor who has acquired the ownership of a superficies or chonsegwon to the mortgaged real estate is entitled to pay the mortgagee the claim secured by the mortgaged real estate and claim the extinction of the mortgage (Article 364 of the Civil Code). If the third acquisitor has paid necessary or useful expenses to preserve and improve the mortgaged real estate, the third acquisitor is entitled to receive preferential reimbursement from the auction proceeds (Article 367 of the Civil Code), so it is not necessary to protect the guarantor rather than the third acquisitor. However, regarding the mortgaged real estate, the third acquisitor who has acquired the mortgaged real estate does not directly protect the obligee's right of collateral security and the third acquisitor who has acquired the mortgaged real estate, and therefore, it is reasonable to view that the third acquisitor is not a person who has acquired the collateral security right and the third acquisitor's's right of collateral security directly.

[2] If a third party of Article 482 (2) 2 of the Civil Code does not include a subordinate mortgagee, but includes a third party of Article 482 (2) 1 of the Civil Code, the subordinate mortgagee is always entitled to subrogate the creditor to the guarantor, but the guarantor must make a supplementary registration in advance to subrogate the creditor to the subordinate mortgagee, so the guarantor must protect the subordinate mortgagee more than the guarantor. As such, this result is not consistent with the legislative purport of Article 482 (2) 1 and 2 of the Civil Code for the purpose of regulating the interests of the guarantor and the subordinate mortgagee fairly and reasonably, and it is merely a person who has acquired a security right by ascertaining only the value of the senior mortgagee's security value for his own interest and protecting the subordinate mortgagee more than the guarantor. Considering such circumstances and Article 482 (2) 1 and 2 of the Civil Code as well as Article 482 (2) 1 and 2 of the Civil Code, it does not include a third party of the guarantor's interest in the third party of the third party mortgage in advance registration.

[1] Articles 364, 367, and 482 (2) 1 and 2 of the Civil Act / [2] Article 482 (2) 1 and 2 of the Civil Act

[1] Supreme Court Decision 2005Da17341 decided Jan. 26, 2006 (Gong2006Sang, 312)

Plaintiff (Law Firm Sejong, Attorneys Kim Ba-young et al., Counsel for plaintiff-appellant)

Korea Credit Guarantee Fund (Law Firm Changwon, Attorneys Yellow-hun et al., Counsel for the defendant-appellant)

Busan High Court (Capwon) Decision 2011Na4493 decided May 18, 2012

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

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 3

This part of the ground of appeal asserted by the plaintiff is that the damages for delay that the defendant paid to the defendant did not deduct the recovery amount of 54,927 won per day, and that the secured claim of the right to collateral was finalized when Busan Bank, which is the creditor, demanded the defendant to discharge the guaranteed obligation, so this part of the ground of appeal is erroneous that the Busan Bank's right to collateral security can only be subrogated to the creditor only for the damages for delay of one year for the principal that the defendant subrogated because the secured claim was changed to the finalized mortgage, but the court of auction

However, the above argument is not a new argument that the plaintiff newly raised in the final appeal and is not an ex officio examination. Therefore, the above ground of appeal cannot be a legitimate ground of appeal, and it cannot be said that the court below failed to make a decision on this.

In addition, the court's exercise of the right to make a tiny statement is to give an opportunity to correct or supplement it when it is contradictory to the party's assertion or when it has incomplete or unclear parts, and to urge the submission of evidence as to the facts of dispute. The solicitation of submission by suggesting facts of legal effect which the parties did not assert or independent means of attack and defense is in violation of the principle of pleading (see, e.g., Supreme Court Decisions 95Da2798, Feb. 9, 1996; 2001Da15576, Oct. 9, 2001).

In light of the above legal principles and the records, the lower court did not err in its judgment in exercising the right to ask for seat or failing to exhaust all necessary deliberations, as alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

Article 482 (2) 1 of the Civil Act provides that "no guarantor shall subrogate the obligee of a third party who has acquired the right on the subject matter or the mortgaged property unless the subrogation is stated in advance in the registration of chonsegwon or mortgage," which is a provision regulating the relationship between the legal subrogation and the obligee who can automatically subrogate the obligee by repaying another person's obligation, and subparagraph 2 of Article 482 (2) provides that "the third party acquisitor shall not subrogate the obligee of the surety."

In other words, with the intention of protecting the guarantor more than the third acquisitor with respect to the relationship between the guarantor and the third acquisitor, the third acquisitor is unable to subrogate the creditor to the guarantor, but it is necessary to protect the third acquisitor at least to the extent that the guarantor does not harm the legitimate interest of the guarantor.

As such, Article 482 (2) 1 and 2 of the Civil Code provides that the third party purchaser cannot subrogate the guarantor to the guarantor. The reason is that the third party purchaser is not likely to cause unexpected damages due to the exercise of the security right and the third party who has acquired the ownership, superficies, or chonsegwon on the mortgaged real estate with the knowledge that there is a burden on the security right on the registry. In addition, the third party who has acquired the ownership, superficies, or chonsegwon on the mortgaged real estate can make a claim for the extinction of the mortgage (Article 364 of the Civil Code), and if the third party purchaser of the mortgaged has paid necessary or useful expenses to preserve and improve the mortgaged real estate, it is necessary to protect the guarantor rather than the third party, so that the third party can receive preferential reimbursement from the auction proceeds of the mortgaged real estate (Article 367 of the Civil Code).

However, it is reasonable to view that the third party who acquired the subordinated mortgage as to the mortgaged real estate does not correspond to the third party who is entitled to exercise the right to claim for extinction of the mortgage as stipulated in Article 364 of the Civil Act (see Supreme Court Decision 2005Da17341, Jan. 26, 2006) and, inasmuch as there is no provision to protect his interests from the enforcement of the senior mortgage, there is no reason to protect the guarantor more than the subordinate mortgagee. Furthermore, unlike the guarantor who is directly responsible for the guarantee obligation of the senior collateral security, the subordinate mortgagee who is not directly responsible for the repayment of the secured obligation of the senior collateral security may subrogate the creditor against the guarantor. Thus, it should be interpreted that the third party purchaser as defined in Article 482 (2) 2 of the Civil Act does not include the subordinate mortgagee.

Meanwhile, if a third party of Article 482(2)2 of the Civil Act does not include a subordinate mortgagee, but includes a third party of Article 482(2)1 of the same Act, the subordinate mortgagee is always entitled to subrogate the creditor to the guarantor, but the guarantor must make a supplementary registration in advance to subrogate the creditor to the subordinate mortgagee, so it would be a result to protect the subordinate mortgagee more than the guarantor. As a result, it is not consistent with the legislative intent of Article 482(2)1 and 2 of the Civil Act for the fair and reasonable adjustment of interests between the guarantor and the subordinate mortgagee, and it is merely a person who has acquired a security right by understanding only the collateral value exceeding the value of the senior collateral for his/her ordinary interest, and there is no reason to protect the subordinate mortgagee more than the guarantor.

In full view of these circumstances and the fact that Article 482 (2) 1 and 2 of the Civil Act regulates the guarantor and the third acquisitor's interests among legal subrogation under the interaction between the above circumstances and Article 482 (2) 1 and 2 of the Civil Act, the guarantor may subrogate the creditor with respect to the third party who acquired the mortgaged property without making a statement of subrogation on the registration of the mortgage in advance. Thus, the guarantor is not included in the subordinate mortgagee of Article 482 (2) 1 of the Civil Act.

Therefore, the Defendant, the guarantor, even if the Plaintiff did not make an additional registration of subrogation before acquiring the subordinated collateral security regarding the instant real estate, rejected the Plaintiff’s claim of this case by deeming that the senior mortgagee may subrogate the Plaintiff. As a result, the lower court did not err by misapprehending the legal doctrine on Article 482(2)1 of the Civil Act, which affected the conclusion of the judgment, contrary to what is alleged in the grounds of appeal.

3. 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 Kim Yong-deok (Presiding Justice)