The judgment below

The part against the Defendant regarding the conjunctive claim is reversed, and this part of the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. As to the ground of appeal on the transfer of rights under the special agreement for preferential recovery of this case

A. In a case where a person who has a legitimate interest in performance by subrogation makes a part of the claim on behalf of the obligor, the subrogated acquires the existing obligee’s claims and rights to collateral within the extent of the value of performance performed by the subrogated. Therefore, in a case where the obligee has a mortgage on real estate, the obligee is liable to make an additional registration of partial subrogation of the mortgage.

On the other hand, even in this case, the creditor has preferential rights to partial subrogation.

The order of repayment is determined according to the special agreement for recovery, if there is a separate agreement between a partial subrogation and a creditor as to the priority of repayment (hereinafter referred to as the "special agreement for preferential recovery").

However, in a case where a creditor is subrogated by performance, the “claim and the right to collateral” is only transferred to the person performing the obligation, and the status of the parties to the contract is not transferred.

In addition, “the right to claim and security thereof,” which can be exercised by a person acting on behalf of a creditor by performance, shall include, if there is a special agreement between a creditor and an obligor to secure the performance of an obligation, the rights held by a creditor under such special agreement. However, it is difficult to deem that “the special agreement for preferential recovery,” which is not in accordance with the agreement between a creditor and a partial subrogation, is included in “the right to claim and security thereof.”

Considering these circumstances, a person who guaranteed a claim for reimbursement against a debtor by a partial subrogation has been subrogated again by a partial subrogation by discharging his/her guaranteed obligation.

Even if so, the agreement between the creditor and the partial subrogation is not the creditor's right to the debtor.