Maritime Partnership Co., Ltd. (Law Firm Closts, Attorneys Kang Dong-se et al., Counsel for the plaintiff-appellant)

National Agricultural Cooperative Federation (Attorney Kim Jin-tae, Counsel for defendant-appellant)

January 16, 2019

Seoul Central District Court Decision 2017Da5090977 Decided May 11, 2018

1. The part of the judgment of the court of first instance against the defendant shall be revoked.

2. The plaintiff's claim as to the above cancellation part is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 150,00,000 won with 5% interest per annum from November 20, 2012 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

It is as set forth in paragraphs 1 and 2 of this Decree.

1. Basic facts

A. The Plaintiff is a financial institution that purchased each real estate listed in the separate sheet No. 3 through No. 8 on which the establishment registration of a neighboring mortgage under the name of the National Federation of Fisheries Cooperatives (NFFC) was completed for the purpose of a fish farm business, and NFFC is a financial institution that granted a loan to the Nonparty as security by using a guarantee certificate issued by the Defendant and each real estate listed in the separate sheet (hereinafter “each of the instant real estate”).

B. On December 23, 2004, in order to obtain a loan from NFFFC, the non-party set up two collateral security rights (hereinafter referred to as the "first collateral security rights of this case") with respect to the real estate of this case No. 1 and 2 owned by the non-party to NFF, which were owned by the non-party to NFFC, including the mortgagee NFC, the non-party, the maximum debt amount of 70 million won (No. 74945), and 580 million won (the receipt number of machinery, such as Daegu District Court racing support, No. 74946).

C. On December 30, 2004, the Nonparty offered a guarantee certificate (the guarantee amount of KRW 423 million) issued by the Defendant as security, in addition to the instant first-mortgage on December 30, 2004, and obtained a loan from NFFC to KRW 470 million with the “facility damage recovery fund” (hereinafter “instant loan 1”).

D. On December 9, 2008, the non-party entered into a mortgage agreement with NFFC and the non-party, which provides a security for all obligations that are, or will be, currently and in the future against NFFC due to a credit transaction with NFFC, and on the same day, set up a mortgage agreement with NFFC regarding the third or eight immovable property of this case as a mortgagee, NFFC, the non-party, and the maximum debt amount (hereinafter referred to as the "second mortgage agreement of this case").

E. On December 16, 201, the Nonparty was additionally loaned KRW 500,000 from NFFF to “financial fishery funds” (hereinafter “instant secondary loan”).

F. On March 9, 2012, the Plaintiff purchased the instant title 3 through 8 from the Nonparty, and completed the registration of ownership transfer in the name of the Plaintiff on March 19, 2012.

G. From April 3, 2012, the Nonparty began to delay the payment of interest on the instant loan No. 1, and from August 9, 2012, the Nonparty began to delay the payment of interest on the instant loan No. 2. Accordingly, on August 24, 2012, NFFC applied for voluntary auction on the instant real estate No. 3 through 876 million won, including the sum of KRW 376 million in the instant loan No. 1 and KRW 50 million in the instant loan No. 2, and KRW 650 million in the instant claim amount (hereinafter “instant auction”).

H. On August 24, 2012, NFFC received reimbursement of KRW 342,97,237 out of the loan No. 1 of the instant case from the Defendant on the basis of the said letter of guarantee, and subsequently completed the additional registration on September 18, 2012 regarding the right to collateral security, which is KRW 580,000,000 (receiving No. 74946) out of the maximum debt amount of the first right to collateral security in the instant case, under the name of the Defendant.

I. On November 19, 2012, the Plaintiff paid to NFFC the sum of KRW 18,805,503 for overdue interest on the instant first loan, KRW 525,068,491 for the principal and interest on the instant second loan, and KRW 551,168,720 for the application for auction, and on the same day, remitted KRW 150,000 to the Defendant at the request of NFF. On November 19, 2012, NFF withdrawn the application for auction of the instant case, and the registration of creation of the instant second collateral security was cancelled on November 19, 2012.

(j) On the other hand, with respect to the real estate in the instant case Nos. 1 and 2, the auction procedure commenced on September 20, 2012 upon the application for voluntary auction by the National Bank of Korea, a Co., Ltd., a collateral security right holder, was conducted (Tagu District Court racing Support 2012TTA) (No. 150,000,000 won received from the Plaintiff, and the Defendant submitted a claim statement of KRW 445,526,188, which is the full amount of the debt against the Nonparty, without excluding KRW 150,000,000,000 paid from the Plaintiff), and around August 27, 2014, the distribution schedule was prepared with the content that distributes the amount of KRW 315,413,8

(k) On June 2, 2016, the Defendant deposited the deposited person with the purport that “250,853,086 won, out of KRW 315,413,80,00, which was distributed as above, was appropriated to the Defendant’s claim against the Nonparty, and KRW 64,295,914, which was the remainder of KRW 64,80,000, which was the amount calculated by deducting KRW 264,80,00 from the amount of KRW 64,560,714, the Defendant deposited KRW 64,295,914, which was the Nonparty, the Plaintiff, NFFC, and the National Bank of Korea.”

【Ground of recognition】 The fact that there is no dispute, Gap 1 through 6, Eul 1, and the purport of the whole pleading

2. Summary of the parties' arguments

A. The plaintiff

On November 19, 2012, the Plaintiff paid KRW 150 million to the Defendant at the request of NFFC to withdraw the instant auction application. As such, the Defendant is obliged to pay the Plaintiff the amount of KRW 150 million upon the performance of the obligation to return unjust enrichment and the legal interest and delay damages therefrom.

B. Defendant

1) On August 24, 2012, the Defendant acquired not only the right to collateral security, the maximum debt amount of which is KRW 580 million (Receipt No. 74946), but also the right to collateral security of this case, on the part of the second right to collateral security of this case, by subrogation, upon repayment of KRW 342,97,237, out of the loan No. 1 of this case, to NFC pursuant to the above guarantee.

2) The Plaintiff’s payment of KRW 150 million to the Defendant is a non-payment (Article 742 note 2 of the Civil Code) or a non-payment suitable for the concept of the Do (Article 744 note 3 of the Civil Code).

3) The Defendant agreed not to file a lawsuit seeking revocation of fraudulent act against the Plaintiff’s purchase of the instant 3 through 8 real estate from the Nonparty, and in return, the Plaintiff received KRW 150 million from the Plaintiff.

4) NFF entered into an agreement with the Plaintiff to withdraw an application for auction of this case at the time that the Plaintiff paid to NFFC KRW 551,168,720 to the Defendant and KRW 150,000 to the Defendant. The Defendant received KRW 150,000 from NFFF and the Plaintiff in accordance with such agreement.

5) Therefore, the Defendant does not bear the obligation to return unjust enrichment against the Plaintiff.

3. Determination

A. In light of the following facts and circumstances acknowledged by the records and arguments, it is reasonable to view that the Defendant: (a) on August 24, 2012, upon satisfaction of KRW 342,97,237 out of the loan No. 1 to NFFC, 500,000 (No. 74946); and (b) on December 9, 2008, the Plaintiff was subrogated to the Defendant regarding KRW 200,000,000,000,000,000 won out of the loan No. 500,000,000,000 won out of the loan No. 1 to the Defendant; and (c) on March 9, 2012, NFF purchased the instant loan No. 3,80,000,000 won out of the loan No. 1 to the Defendant; and (d) on March 19, 2012, it acquired the ownership of the instant loan No. 75000,00,00,000 million won.

1) Before the filing of the instant lawsuit, the Plaintiff filed a lawsuit seeking compensation against NFFC (Seoul District Court 2013Gahap98444 / Daegu High Court 2015Na21081 / Supreme Court 2016Da201470). The Defendant participated in the instant lawsuit procedure as a supplementary intervenor of NFFFC, and the judgment against the Plaintiff was finalized.

In the above lawsuit, the part related to this case among the summary of the plaintiff's cause of claim in the above lawsuit is "18,805,503 won in interest on loan 1 of this case paid to NFFC on November 19, 2012 to withdraw the application for auction of this case, 525,068,068,491 won in interest on loan 1 of this case, and 7,294,726 won in interest on loan 2 of this case, and 51,168,720 won in total, and 15,000,000 won in interest on loan 1 of this case and 18,805,50,000 won in total paid to the defendant and 168,805,50,000 won in total to the plaintiff and NFF, which constitute a tort of unjust enrichment or a tort of NFFC, and thus, the agreement between the plaintiff and NFFC, which constitutes a tort of this case.

The above court rejected the plaintiff's assertion. One of the reasons is that "any debt arising from credit transaction with the non-party to NFF at the time of the establishment of the second right to collateral security (the debt of the second right to collateral security in this case occurred after about three years from that time) was only the debt of the first right to collateral security in this case (the debt of the second right to collateral security in this case occurred after about three years from that time). According to the contract establishing the second right to collateral security in this case, the secured debt of the second right to collateral security in this case is naturally included in the secured debt of the second right

2) The Defendant’s repayment of KRW 342,97,237 out of the instant loans to NFFC pursuant to the above guarantee agreement. Accordingly, pursuant to Articles 481(4) and 482(1)5 of the Civil Act, some of the instant collateral security rights in the name of NFFFC should be acquired by subrogation, and it does not require registration as the acquisition of real rights under the provisions of law. Thus, even if the Defendant did not complete the registration of collateral security transfer, it may assert the acquisition of collateral security rights.

3) According to Gap evidence 7, the Financial Supervisory Service's reply to the plaintiff's dispute mediation that "the debt of the first loan of this case is not included in the secured debt of the second loan of this case." However, it is insufficient to reverse the court's decision stated in the above Paragraph 1, which states "the debt of the first loan of this case is naturally included in the secured debt of the second loan of this case."

B. Based on Article 482(2)1 of the Civil Code, the Plaintiff asserted that the Defendant did not complete the additional registration of subrogation as to the right to collateral security of this case No. 2, and therefore, the Plaintiff cannot subrogate NFF against the Plaintiff who acquired the third party real estate of this case No. 3 or 8 real estate of this case. However, even according to the above provision, it is necessary to make the additional registration of subrogation as to the third party purchaser who acquired the real estate of this case after the payment by the guarantor was made by the third party purchaser. However, the guarantor who paid the payment after the third party purchaser acquired the real estate of this case may subrogate the third party's right to collateral security without subrogation (i.e., it is impossible for the third purchaser who acquired it before the payment by the guarantor to confirm the existence of right to collateral security on the register and thus, it is not unreasonable to request the third party purchaser to make the registration of subrogation before the payment by the guarantor is accompanied by the right to collateral security in this case, and the Plaintiff's assertion that the above third party purchaser acquired the ownership of this case on March 19, 27, 2019.

C. Since the Plaintiff’s cancellation of the instant 2-mortgage, the Defendant asserted that there is no room for exercising the instant 2-mortgage on behalf of NFFFC, but the Defendant shall acquire part of the instant 2-mortgage on August 24, 2012 as subrogation upon repayment of KRW 342,97,237 to NFFFC in accordance with the legal doctrine regarding the acquisition of real rights by law. Since the instant 2-mortgage was cancelled only on November 19, 2012, the Plaintiff’s above assertion is without merit.

D. The Plaintiff asserts that the Defendant’s receipt of KRW 150 million from the Plaintiff and without appropriating it for the repayment of the Nonparty’s liability for reimbursement against the Defendant for reimbursement of the amount of reimbursement against the Nonparty. However, the Plaintiff’s claim that the said KRW 150 million should be returned on or around August 27, 2014, 315,413,80, which was paid as dividends in the auction procedure for real estate Nos. 1 and 2 of this case, ought to be deemed as being appropriated for the repayment of the said amount of reimbursement.

The following facts are revealed: (a) the Defendant paid to NFFC KRW 342,97,237 out of the loan No. 1 of this case; and (b) the Defendant acquired the right to collateral security, which is the maximum debt amount of KRW 580,000 (Receipt No. 74946) out of the first collateral security of this case; and (c) the Defendant submitted a claim statement of KRW 445,526,188, which is the total amount of the claim for indemnity against the Nonparty, without excluding KRW 150,000,000,000 which was paid from the Plaintiff in the auction procedure for the real estate No. 1 and 2 of this case; and (d) the Defendant received dividends of KRW 315,413,80,

① However, at the time the auction procedure for the first and second real estate of this case was completed, the plaintiff's claim for damages against NFF was in progress. According to the summary of the above claim cause of this case, if NFF lost in the above case, the defendant, a supplementary intervenor of NFFF, would have to return to NFFF, KRW 150 million, which he received from the plaintiff. ② On June 2, 2016, which is one month after the termination of the above claim for damages, the defendant paid from the plaintiff, KRW 150,000,000, which was paid by NFFF, and KRW 315,413,80,000, which was paid by the plaintiff, deposited the remaining amount after being appropriated for the repayment of the claim for damages to the non-party's defendant. In light of the above claim for damages, the defendant is merely required to demand a distribution in the auction procedure for the first and second real estate of this case in preparation for the plaintiff's winning, and there is no evidence to acknowledge the remaining amount remaining after deducting the plaintiff's claim for damages.

The plaintiff's above assertion is without merit.

4. Conclusion

The plaintiff's claim shall be dismissed as it is without merit. Since the part against the defendant among the judgment of the court of first instance is unfair with different conclusions, it is revoked, and the plaintiff's claim as to the revocation is dismissed.

(attached Form omitted)

Judges Lee Jae-soo (Presiding Judge)

1) As of May 2, 2016, the original copy of the Supreme Court’s decision in the case where the Plaintiff filed a lawsuit against NFFFC for a claim for compensation against NFFC (TFF) was rendered a final and conclusive judgment against the losing party (TFFFT 2013Gau District Court 2013Gau 98444 / Daegu High Court 2015Na21081 / Supreme Court 2016Da201470) appears to be based on

2) If performance has been effected with the knowledge that the obligation has been discharged, the return may not be demanded.

3) If, in the event that an unincorporated person has discharged an obligation by mistake, the reimbursement conforms to the concept of the Do, the return may not be demanded.

4) A person who has a legitimate interest in performance shall, as a matter of course, subrogate the obligee by performance.

5) A person who has subrogated to an obligee under the preceding two Articles may exercise his/her right to claim reimbursement by virtue of his/her own right and the right to such security.

6) The surety shall not subrogate the obligee against the third person who has acquired the right on the subject matter or the mortgaged property unless the subrogation is stated in advance by the registration of chonsegwon or the mortgage.