Plaintiff

Defendant 1 and three others (Law Firm Yang & Lee, et al., Counsel for the defendant-appellant)

February 24, 2017

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Defendant 1 pays to the Plaintiff 160,294,614, Defendant 2 (original trial: Defendant 2), Defendant 3, and Defendant 4 (original trial: Defendant 4) 106,863,076 each of the above amounts, 5% per annum from September 30, 2008 to the service date of a duplicate of the complaint of this case, and 15% per annum from the next day to the day of full payment.

1. Basic facts

A. On August 8, 2008, the Plaintiff purchased from Nonparty 1 and Defendant 1, the amount of KRW 2.715 billion from Seo-gu, Seo-gu, Seo-gu, Seo-gu, Seoul ( Address omitted) orchard 4526 square meters (hereinafter “instant land”). The Plaintiff completed the registration under Nonparty 3’s name.

B. As the Plaintiff, Nonparty 1, and Defendant 1 purchased the instant land from Nonparty 3 on November 10, 201, on November 16, 201, the Plaintiff completed the registration of ownership transfer with respect to each share of 1,862/4,526 out of the instant land’s share.

C. The Plaintiff, among the purchase price of the instant land, bears a total of KRW 18,416,039,000,000, which is equivalent to the above shares of shares, as taxes and certified judicial scrivener fees.

D. Meanwhile, as the purchase price to be borne by Nonparty 1 and Defendant 1 is insufficient, the Plaintiff borrowed KRW 850 million from the bank of Korea as collateral with the Plaintiff’s consent. On September 10, 2008 with respect to the instant land owned by the Plaintiff, the registration of change of collateral security by changing the debtor to Nonparty 1 was completed on September 7, 2012.

E. Nonparty 1, who had been employed by Defendant 2 and Defendant 3 as his her son and re-born with Defendant 1, followed Defendant 4. On June 16, 2014, upon the death of Defendant 1, Defendant 1 jointly inherited the property of the deceased Nonparty 1 (hereinafter “the deceased”), and Defendant 1 completed a share transfer registration as to the shares of 3,724/40,734 out of the instant land.

F. The instant land was sold at KRW 1,241,00,000 on November 1, 2015, upon the enforcement of the right to collateral security stated in the said Paragraph (d). The Plaintiff received dividends of KRW 37,532,175 as the owner’s surplus in the said auction procedure.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 13 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiff's assertion

The Defendants: (a) as a person who succeeded to both positive and negative property of the Deceased, faithfully repaid the secured obligation of the mortgage established on the land of this case; and (b) neglected to exercise the security right to the land of this case on purpose or by negligence; (c) thereby making the land of this case successful bid at the price of KRW 1.24 billion, which is the price less than half of the purchase price, which is the price less than half of the purchase price; and (d) as such, due to the Defendants’ tort, the Plaintiff suffered loss of the money borne by the Plaintiff to purchase the land of this case, the Defendants

3. Determination

Since the security of the property to secure another's property will be subject to the risk of the debtor's own funds, even if the property to secure another's property has been lost due to the exercise of the security right, it can not be immediately recognized as a tort based on the debtor's negligence, and if the debtor paid attention, it should be recognized that the circumstances such as the debtor could have prevented the exercise of the security right.

In full view of the following circumstances, it is difficult to acknowledge that the land of this case was sold because the Defendants failed to repay the secured debt of the right to collateral security established on the land of this case, and there was an intentional or negligent act against the Defendants, and there is no other evidence to acknowledge otherwise.

① From among the deceased’s inherited property, active property is KRW 5.486 billion, small property is KRW 4.631 billion, and the inheritance tax to be paid by the Defendants is KRW 174 million. Of active property, part of the real property among the real property is the commencement of compulsory auction before the deceased’s death, or on which a considerable amount of mortgage has been established, so it is difficult for the Defendants to dispose of it easily.

② It is difficult to see that the sale price determined in the auction procedure for the auction of the real estate as to the instant land is unreasonable, and no evidence exists that actually won the successful bid at the time.

③ The offer of the instant land as security for the deceased and Defendant 1’s debt is due to the Plaintiff’s consent. Although the loan was used in the purchase price to be borne by the deceased and Defendant 1, the Plaintiff is liable to bear risks therefrom. In a case where the Plaintiff loses the right to share in the instant land, it may compensate for its losses by exercising the right to indemnity under Article 341 of the Civil Act.

④ If the Plaintiff thought that the successful bid price of the instant land was too low, the Plaintiff would have been able to exercise its preferential right by exercising a co-owner’s preferential right under Article 140(1) of the Civil Execution Act.

4. Conclusion

Therefore, the plaintiff's claim of this case is all dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Jong-gu (Presiding Judge)