[1] Requirements for participation by an independent party under Article 79(1) of the Civil Procedure Act

[2] In a case where the property owned by the joint mortgagee and the property owned by the property owned by the property owned by the property owned by the property owned by the property owned by the property pledged is sold first and paid out at the proceeds of sale, whether the property owned by the property mortgaged acquires the right to indemnity against the debtor and at the same time the senior joint mortgage is acquired by the property owned by the property mortgaged (affirmative), and whether the senior mortgagee on the property owned by the property owned by the property pledged can substitute the senior joint mortgage on the property owned by the property acquired by the property pledged by the property pledged (affirmative)

[3] In a case where Party B filed an application for intervention with Party B seeking a cancellation of the registration of creation of a new mortgage against Party B, on the ground that Party B’s claim was extinguished by set-off, and Party B filed an application for intervention against Party B, on the ground that Party B filed an application for intervention in the registration of creation of a new mortgage against Party B, on the following grounds: (a) the priority mortgage was established in the future on the real estate owned by Party A for the purpose of joint mortgage; (b) the auction procedure was conducted first on the real estate owned by Party A; (c) Party C recovered the total amount of claims; and (d) Party C claimed that Party B would be entitled to preferential repayment from the mortgage transferred to Party B as a junior mortgagee for the real estate owned by

[1] An independent party intervention under Article 79(1) of the Civil Procedure Act intends to assert that all or part of the subject matter of a lawsuit is his/her own right when a lawsuit is pending between the other persons, or to settle in a lump sum without contradiction the rights or legal relationship between the three parties by participating in the lawsuit as a party, and by a third party asserting that the rights are infringed upon as a result of the lawsuit. Accordingly, the intervention in the subject matter of a right among an independent party intervention may be allowed when it can be deemed that the plaintiff's claim on the principal lawsuit and the intervenor's claim are incompatible with the argument itself, and the intervention in the prevention of harm may be allowed in cases where it is objectively recognized that the plaintiff and the defendant had the intent to infringe on the intervenor's rights through a lawsuit and it is recognized that the plaintiff's rights

[2] In the event a senior joint mortgagee takes charge of the real estate owned by the joint mortgagee and owned by the joint mortgagee, among the real estate owned by the joint mortgagee and the real estate owned by the joint mortgagee, the joint mortgagee shall acquire the right to indemnity against the debtor, and at the same time acquire the preferential mortgage on the real estate owned by the debtor by subrogation. In this case, even if there is a opposing claim against the mortgagee's real estate owned by the joint mortgagee, the debtor may not set up against the subordinate mortgagee on the real estate owned by the mortgagee by offsetting the opposing claim against the mortgagee's real estate owned by the joint mortgagee, unless there are special circumstances. The debtor may expect a set-off only when the senior joint mortgagee first applies for an auction on the real estate owned by the joint mortgagee, but the expectation of set-off determined by the circumstance is not considered to have priority over the legal status of the subordinate mortgagee on the real estate owned by the mortgagee.

[3] In a case where Party B filed an application for intervention with Party B seeking cancellation of the establishment registration of a neighboring mortgage against Party B, on the ground that Party B’s claim for cancellation of the establishment registration of a senior mortgage is not consistent with the allegation as to the same legal relationship as the claim for the definition of transfer of the registration, and that Party B did not meet the requirements for intervention of the owner of a right under the former part of Article 79(1) of the Civil Procedure Act, since Party B did not meet the requirements for intervention of the owner of a right under the former part of Article 79(1) of the Civil Procedure Act on the ground that Party B’s claim for cancellation registration is not compatible with the assertion as to the same legal relationship as the claim for the definition of transfer of the registration, and Party C’s intent to infringe upon Party B’s right through litigation was objectively difficult to acknowledge that Party B’s right through litigation.

[1] Article 79(1) of the Civil Procedure Act / [2] Articles 341, 368(2), 370, 481, and 482 of the Civil Act / [3] Article 79(1) of the Civil Procedure Act, Articles 341, 368(2), 370, 481, and 482 of the Civil Act

[1] Supreme Court Decision 2005Ma814 Decided October 17, 2005 (Gong2005Ha, 1921) Supreme Court Decision 2010Da106245 Decided May 13, 201 / [2] Supreme Court Decision 93Da25417 Decided May 10, 1994 (Gong194Sang, 1638)

Plaintiff (Law Firm Han, Attorneys Transferred-type et al., Counsel for the plaintiff-appellant)

Han Bank Co., Ltd. and one other (Law Firm Shin & Yang, Attorneys Gyeong-spon et al., Counsel for the plaintiff-appellant)

An independent party intervenor (Attorney Song-young et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2013Na11735, 11766 decided July 25, 2014

The part of the judgment of the court below regarding the claim for the establishment of a mortgage on February 14, 2001 by the independent party intervenor shall be reversed, and the application for intervention by the independent party intervenor shall be dismissed. The remaining appeals by the independent party intervenor shall be dismissed. The total costs and costs of the lawsuit shall be borne by the independent party intervenor.

1. Determination on February 14, 2001 as to the claim for the cancellation of the registration of the establishment of neighboring mortgage on February 14, 2001

Before determining the grounds of appeal, this part of the motion for intervention by an independent party is examined ex officio.

A. An independent party intervention under Article 79(1) of the Civil Procedure Act intends to assert that all or part of the subject matter of a lawsuit is his/her own right when a lawsuit is pending between the other parties, or to settle in a lump sum without contradiction any conflicting rights or legal relationship between the third party by participating in the lawsuit as a party and the third party, whose right is infringed upon as a result of the lawsuit. Therefore, the intervention in the subject matter of an independent party intervention may be allowed when it can be viewed that the plaintiff's claim on the principal lawsuit and the intervenor's claim cannot be compatible with the argument itself. The intervention in the prevention of corruption may be allowed in cases where it is objectively recognized that the plaintiff and the defendant of the principal lawsuit have an intention to infringe on the intervenor's rights through the lawsuit and it is deemed that the plaintiff's rights or legal status is likely to be infringed (see, e.g., Supreme Court Decisions 2005Ma814, Oct. 17, 2005; 2010Da106245, May 13, 20111).

B. The facts acknowledged by the court below are as follows.

(1) Each real estate owned by Nonparty 1 and each real estate owned by an independent party intervenor (hereinafter “participating”) was completed three times in the name of Defendant Han Bank Co., Ltd. (hereinafter “Defendant Han Bank”) for the purpose of joint mortgage, as follows: ① on February 14, 2001, the establishment of a mortgage was completed on the following three occasions; ② on July 26, 2004, the obligor Nonparty 1, the maximum debt amount of KRW 1.2 billion, and ③ on April 6, 2007, the obligor and Nonparty 1, the maximum debt amount of KRW 1.2 billion were included in KRW 1.2 billion. At the time of the establishment of a mortgage No. 1, the Intervenor completed the registration of the creation of a superficies in the future of Defendant Han Bank.

(2) On April 3, 2008, Nonparty 1 completed the registration of creation of a mortgage consisting of Nonparty 1 and the maximum debt amount of KRW 3 billion in the future of the Plaintiff on each of the real estates owned by it, and registered on April 14, 2008 by changing the maximum debt amount to KRW 1.2 billion.

(3) On May 201, 201, the auction procedure was in progress with respect to each of the real estate owned by Nonparty 1. On June 28, 2012, Defendant Han Bank received dividends of KRW 2,236,185,667 based on the 1st mortgage and collected the total amount of the secured claim by subrogation of KRW 708,239,264 on the same day from the Intervenor 2 and 3th day. Nonparty 1 died on June 19, 201, when the heir renounced inheritance, Nonparty 2 was appointed as an administrator of inherited property of Nonparty 1 on September 26, 2012.

C. The Plaintiff, as the principal claim, sought the transfer of the establishment registration of a new mortgage against the Defendant Han Bank, or sought the transfer of the establishment registration of a new mortgage on one occasion on behalf of the Defendant Han Bank, on behalf of the Defendant Han Bank, on the other hand, the following assertion was made. (1) The Plaintiff, as a subordinate mortgagee for each real estate owned by Nonparty Han Bank, may obtain the right to indemnity against the Intervenor and acquire the right to collateral security on one occasion as to each real estate owned by the Intervenor by subrogation at the time of auctioning the real estate owned by the Intervenor, which was owned by the Defendant Han Bank, first than the real estate owned by the Intervenor, which was owned by the Intervenor, and the Intervenor’s debt was subrogated by the Intervenor. (2) The Plaintiff, as a subordinate mortgagee for each real estate owned by the Nonparty Han Bank, may obtain the preferential repayment of collateral

On the other hand, the intervenor (1) sought cancellation of the registration of creation of a neighboring mortgage against the defendant Han Bank No. 1 on the ground that the claim for reimbursement, which he acquired against the intervenor by the non-party 1's successor through the above auction, was set off against the intervenor's claim for reimbursement and loan against the above successor.

D. As to the first right to collateral security for which the Plaintiff seeks registration of transfer due to the principal claim, the intervenor did not assert that all or part of the right to claim the right to collateral security or the right to claim the registration of transfer belongs to himself/herself, and the Plaintiff merely claims the cancellation of the first right to claim the right to collateral security based on his/her subrogation from the date of pleading in the first instance trial, claiming that the right to claim reimbursement has ceased to exist as a set-off on the date of pleading in the first instance trial. The Intervenor’s claim for registration of cancellation is not in a relationship that is not compatible with the assertion as to the same legal relationship as that of the Plaintiff’s claim seeking the transfer of the above registration. Therefore, the application for intervention by an independent party did not meet the requirements for participation in the right claim under the former part of Article 79(1) of the Civil Procedure Act. Furthermore, it is difficult to objectively recognize that the Plaintiff and the Defendant bank

Therefore, the lower court should have dismissed the application for intervention by the independent party. Furthermore, on the premise that the application for intervention is lawful, the lower court dismissed the application by changing the first instance judgment that accepted the Intervenor’s claim on this part. In so doing, the lower court erred by misapprehending the legal doctrine on the requirements for intervention by the independent party,

On the other hand, the intervenor's assertion of set-off is simplified. In the event that a person who has pledged the property owned by a person who has pledged the property owned by a person who has pledged the property owned by a person who has pledged the property has first sold the property owned by a person who has pledged the property and has been repaid at the proceeds of the sale, the person who has pledged the property will acquire the right to indemnity against the debtor and at the same time acquire the senior joint mortgage on the property owned by the person who has pledged the property by subrogation. The senior mortgagee on the property owned by the person who has pledged the property can make a subrogation on the senior joint mortgage on the property owned by the debtor (see Supreme Court Decision 93Da25417, May 10, 1994, etc.). In this case, even if there is a counterclaim against the person who has pledged the property, the debtor may not set off against the person who has pledged the property owned by the person who has pledged the property, barring any special circumstance. The debtor can only be expected to set off against the intervenor's claim of set-off against the above legal status of the intervenor.

2. Determination as to the remaining part of the request for cancellation registration

The part of the Intervenor’s claim, excluding the claim for cancellation of registration, in the above paragraph (1), was excluded from the scope of the appellate court’s judgment on the ground that there was no objection against the pronouncement of judgment citing the claim by the first instance court. This part of the judgment was finalized at the same time as the judgment of the lower court, which is the appellate court’s judgment, and thus, the Intervenor’s appeal on this part is unlawful as it concerns the part already finalized (see, e.g., Supreme Court Decisions 2001Da68914, Sept. 26, 2003; 2006Da2940, Mar

3. Conclusion

Without further proceeding to decide on the remaining grounds of appeal, the part of the judgment of the court below on the claim regarding the registration of creation of a mortgage on the first place of the intervenor's first time, but this part is sufficient to be tried by this court, and therefore, it is decided to render its own decision in accordance with Article 437 of the Civil Procedure Act. Since the intervenor's application for intervention by the independent party corresponding to the reversed part is unlawful, it is dismissed, and the remaining appeal is also dismissed, and the total costs and costs of the lawsuit regarding the reversed part

Justices Park Poe-young (Presiding Justice)