Whether the owner of the mortgaged object bears the obligation to return unjust enrichment equivalent to the secured claim amount if the owner of the mortgaged object receives money, etc. based on the claim for delivery before seizing the right to claim delivery of money or article by exercising the subrogation right (affirmative)

A mortgagee may exercise a subrogation right on money or other things substituted for the mortgaged object which are to be obtained by the mortgagee due to the loss, damage, or expropriation of the things which are the object of the mortgage, but shall be seized before such payment or delivery: Provided, That if the mortgagee has received money, etc. based on the mortgagee's right to claim the delivery of the said money or things before seizing the right to claim the delivery of the mortgaged object, the mortgagee may no longer exercise his subrogation right. In this case, the mortgagee has control over the value of the mortgaged object within the scope of the maximum debt amount of the mortgage, thereby loss of the mortgage. On the other hand, the mortgagee is in a position to yield exchange value of the mortgaged object within the scope of the maximum debt amount of the mortgage, and the owner of the mortgaged takes advantage within the scope of the secured debt amount within the scope of the maximum debt amount of the mortgage amount. Such benefit is merely a loss of the mortgagee, and there is no obligation to return from the mortgagee to the mortgagee, in view of the concept of property loss and no legal obligation to return the profit to the mortgagee.

Articles 342, 370, and 741 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff (Attorney Jeong-ju et al., Counsel for the plaintiff-appellant)

Defendant

Seoul Northern District Court Decision 2007Na3870 Decided January 16, 2008

The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

The grounds of appeal are examined.

A mortgagee (including a pledgee) may exercise a subrogation right on money or other things substituted for the mortgaged object which are to be obtained by the mortgagee due to the loss or damage of, or joint collection of, the mortgaged object: Provided, That such subrogation right shall be attached before payment or delivery (Article 370, 342 of the Civil Act). If the mortgagee has received money or other things based on the mortgagee’s claim for delivery before seizing the mortgagee’s claim for delivery of the said money or things, the mortgagee cannot exercise his subrogation right. In this case, the mortgagee suffers loss if he controls the exchange value of the mortgaged object within the scope of the maximum debt amount of the mortgage, and on the other hand, the mortgagee is in a position to yield exchange value of the mortgaged object to the mortgagee within the scope of the maximum debt amount, and thus, the mortgagee has no legal obligation to obtain profits within the scope of the secured debt amount within the scope of the maximum debt amount, and thus, the mortgagee cannot obtain profits from the mortgagee and the mortgagee’s property interests within the scope of the amount received within the scope of the maximum debt amount, in view of the concept of unjust enrichment between the mortgagee and the mortgagee.

According to the reasoning of the judgment of the court below, the court below rejected the plaintiff's claim for restitution of unjust enrichment on October 10, 202 by asserting that the plaintiff suffered losses equivalent to the secured debt amount due to the extinguishment of the right to collateral due to the expropriation of the real estate of this case before the seizure of the right to claim payment of the above deposit money, and that the plaintiff claimed the return of profits from the defendant, as long as the plaintiff, who was the joint defendant 1 of the court below, lost his right to claim the return of the above secured debt since he did not exercise the right to claim reimbursement of the secured debt of this case, and the defendant, the joint defendant 1 of the court below, was donated the real estate of this case on June 8, 2004 and the Korea Highway Corporation deposited the real estate of this case on March 15, 2006.

However, if the facts are as alleged by the plaintiff, in light of the legal principles as seen earlier, the defendant is obligated to return the amount of the secured debt within the maximum debt amount of the above secured debt out of the above secured debt received as unjust enrichment to the plaintiff.

Supreme Court Decision 2002Da33137 Decided October 11, 2002, which was invoked by the court below, where the subrogation right holder loses preferential right by failing to demand a distribution in the distribution procedure of the claim for expropriation compensation, which is a modified object of the mortgaged object, in case where he loses preferential right by failing to demand a distribution in the distribution procedure of the claim for expropriation compensation, he cannot make a claim for return of unjust enrichment against other creditors who received a distribution in the same distribution procedure, and it

Therefore, the court below should have deliberated and determined the amount of the secured debt within the scope of the facts alleged by the plaintiff and the maximum debt amount of the right to collateral security, and ordered the defendant to return the above amount. However, the court below erred by misapprehending the legal principles as to the elements for establishing unjust enrichment and thereby affecting the conclusion of the judgment.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)