In a case where a joint mortgagee claims only a part of the secured debt out of the amount of the secured debt at the auction procedure of the real estate which was first executed by the joint mortgagee among several joint mortgaged real estate, whether the claim equivalent to the difference between the apportioned amount of liability and the distributed amount of the secured debt pursuant to Article 368(1) of the Civil Act may be deemed to have waived the

In any of the several immovables which are the object of a joint mortgage, the joint mortgagee may first exercise the mortgage and obtain a preferential repayment of all or part of the secured debt freely. Thus, even if the joint mortgagee claims only a part of the secured debt at the auction procedure concerning the real estate which was first executed among the above several immovables and received the distribution thereof, it cannot be deemed to have waived the mortgage on other real estate whose auction has not yet been executed regarding the difference between the amount of the other secured debt and the amount of the distribution of the real estate pursuant to the provisions of Article 368(1) of the Civil Act.

Article 368 of the Civil Act

Plaintiff (Attorney Kim Young-chul, Counsel for the plaintiff-appellant)

1. The term “the term” means “the term” means “the term “the term” means “the term” means “the term.

Seoul High Court Decision 97Na7266 delivered on July 25, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

On the first ground for appeal

The court below rejected the plaintiff's assertion that the defendant, in collusion with the non-party South Korea Mutual Savings and Finance Company, demanded only a part of the amount of credit in the prior auction procedure of this case, and there is no evidence to acknowledge it. In light of the records, such fact-finding by the court below is justified and it is not erroneous in the misapprehension of legal principles,

As to the second and third points

Even if one of the several immovables is the object of a joint mortgage, a joint mortgagee may execute a mortgage first and obtain a preferential repayment of all or part of the secured debt freely. Thus, even if only a part of the secured debt is claimed in the auction procedure concerning the real estate first executed among the above several immovables and received a dividend, it cannot be said that the mortgage on the other real estate whose auction is not yet executed with respect to the difference between the amount of the remaining secured debt and the amount of the dividend pursuant to the provisions of Article 368(1) of the Civil Act.

The decision of the court below to the same purport is just and it is not erroneous in the misapprehension of legal principles as to the effect of joint collateral security like the theory of lawsuit. There is no ground for appeal.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Im-soo (Presiding Justice)