Upon entering into three credit transaction agreements with Eul savings bank for a short period of time with regard to loans of a large amount of money, Byung corporation, a comprehensive financial securities company that acquired all of the loans from Eul bank for each of the following loans, concluded three collateral contract with regard to each of the above loans as the maximum debt amount, and "any obligations currently and future shall be secured due to general loan transaction," but at the time of the third loan, it disposed of an apartment, which is one of the immovable properties created joint collateral with the third loan, and repaid almost part of the third loan out of the purchase amount, the case holding that Eul bank still purchased other real properties created joint collateral with the above apartment at the time of the third loan commencement of the third loan commencement by Eul bank, and thus, during the voluntary auction process, it has the right to preferential reimbursement from Eul bank for the entire loan and the secured debt of Eul as the first creditor and the secured debt amount, which was apportioned to Byung corporation, a junior collateral security company, a junior collateral security creditor, had to be repaid within the scope of the maximum debt amount set forth in the above general collateral and the secured debt amount as the second debt amount should still be satisfied.

Upon entering into three credit transaction agreements with Eul Savings Bank for a short period of time, Byung corporation, a comprehensive financial securities company that received a large amount of loans from Eul Bank for each of the following loans, shall set the maximum debt amount equivalent to 120% of each loan with respect to each of the other real estate, as the maximum debt amount, and entered into three mortgage contracts with the effect that "any debt currently and future shall be secured due to the transaction of general loan loan." At the time of the third loan, it disposed of an apartment, one of the real estate created a joint collateral with the third loan, and repaid most of the third loan out of the purchase amount. At the time of the third loan commencement by Eul Bank requested, the other real estate, which was created a joint collateral with the above apartment at the time of the third loan commencement, was sold with the third loan commencement, and the distribution schedule was set up, which was the first creditor and the junior collateral security company that received the entire amount of loans from Eul Bank as the comprehensive financial securities company that acquired the entire collateral and all of the collateral, and filed a lawsuit of demurrer against the distribution amount.

The case holding that the above right to collateral security shall be deemed as a limited collateral, and that the first and second loans shall be included in the secured debt, and even if the bank was partly paid the secured debt of the above right to collateral security with the purchase price of apartment house, which is the joint collateral of the above right to collateral security, it shall not be appropriated first for the secured debt of the above right to collateral security, but shall be appropriated for the claims of the bank Eul, in accordance with the general legal principles of satisfaction of payment, and the bank shall still have the right to preferential reimbursement within the scope of the remainder of the claims after satisfaction of payment, in full view of various circumstances, such as the following: (a) the obligor stated in the column of the above right to collateral security that "all obligations are currently and future due to transactions with the obligee pursuant to the following agreement; and (b) the first and second loans are all "general loan loans."

Articles 105, 357(1), 360, and 479 of the Civil Act; Article 5 of the Regulation of Standardized Contracts Act

Plaintiff 1 and one other (Law Firm Mai, Attorney Park Chang-chul, Counsel for the plaintiff-appellant)

Mez Comprehensive Financial Securities Co., Ltd. (LLC, Kim & Lee LLC, Counsel for the defendant-appellant)

June 28, 2018

1. The plaintiffs' primary claim and the conjunctive claim are all dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

○ Main Claim

Of the distribution schedule prepared by the same court on January 10, 2018, with respect to the auction case of real estate rent in Seoul East Eastern District Court 2013ta District Court 21899, KRW 864,000,000 against the defendant, KRW 79,700,000 against the defendant, KRW 79,700,000 against the plaintiff 1, and KRW 00,000 against the plaintiff 2, respectively, shall be corrected to KRW 64,30,00.

○ Preliminary Claim

Of the distribution schedule prepared by the same court on January 10, 2018, with respect to the auction case of real estate rent in Seoul Eastern District Court 2013ta District Court 2189, the amount of dividends to the defendant shall be 22,319,850 won, the amount of dividends to the plaintiff 1 shall be 79,70,000 won, the amount of dividends to the plaintiff 1 shall be 41,980,150 won, and the amount of dividends to the plaintiff 2 shall be 41,980,150 won, respectively.

1. Basic facts

A. Conclusion of a loan agreement and establishment of a mortgage between the OSB Savings Bank and the non-party 1

1) On May 7, 2013, OSB Savings Bank Co., Ltd. (formerly changed: OSB Savings Bank; hereinafter “OSB Savings Bank”) entered into a credit transaction agreement with Nonparty 1 at a rate of 10.63% per annum, and with a rate of 25% per annum (hereinafter “the first loan”). On the same day, Nonparty 1 entered into a mortgage agreement with Nonparty 1 on May 7, 2013 with respect to the apartment ○○○○○○○○○○○○○○ △△△△△△△△ (hereinafter “SSB”) (hereinafter “SB”) in Seoul Special Metropolitan City ( Address 1 omitted) in order to secure all debts owed at present and in the future due to the general loan transaction with the OSB Savings Bank, and completed the registration of the establishment of a mortgage in the same past.

2) On May 9, 2013, OSB Savings Bank entered into a credit transaction agreement with Nonparty 1 and 1.2 billion won (hereinafter “the second loan”). On the same day, Nonparty 1 and Nonparty 2 entered into a mortgage transaction agreement with 25% per annum on the rate of 6.35% per annum and 25% per annum, and on the same day, Nonparty 1 and Nonparty 2 entered into a mortgage transaction agreement with the OSB Savings Bank with Nonparty 1 on the same day in order to secure all the obligations currently and future due to the ordinary loan transaction with the OSB Savings Bank, and completed the registration of the establishment of a mortgage agreement with the same contents as the maximum debt amount (2 omitted) in Gwangjin-gu, Seoul Special Metropolitan City ( Address 1/2 omitted) for the purpose of securing all the obligations currently and future.

3) 오에스비저축은행은 2013. 5. 23. 소외 1과 7억 2,000만 원을 약정이율 연 8.66%, 지연배상금률 연 25%로 정하여 대출하기로 하는 여신거래약정(이하 ‘이 사건 3차 대출’이라고 한다)을 체결하였고, 같은 날 소외 1이 오에스비저축은행에 대하여 일반자금대출거래로 말미암아 현재 및 장래에 부담하는 모든 채무를 담보하기 위하여 서울 광진구 (주소 3 생략) 임야 14,803㎡ 중 소외 1 지분 24/50(이하 ‘이 사건 부동산’이라고 한다), 서울 광진구 (주소 4 생략) 임야 2,955㎡ 중 소외 1 지분 24/50, 소외 1 소유의 서울 광진구 (주소 5 생략) 아파트 ◎◎동 ◁◁◁호(이하 ‘▷▷▷아파트’라고 한다)를 공동담보로 하여 채권최고액 8억 6,400만 원, 근저당권자 오에스비저축은행, 채무자 소외 1로 하는 근저당권설정계약(이하 ‘이 사건 근저당권설정계약’이라고 한다)을 체결한 후 같은 내용의 근저당권설정등기를 각 마쳤다(이하 ‘이 사건 근저당권’이라고 한다).

(b) Request for auction by the OSB Savings Bank;

1) From August 15, 2013, Nonparty 1 failed to pay interest on each of the instant loans from August 15, 2013. Accordingly, on September 9, 2013, OSB Savings Bank issued a notice of expected loss of interest to the effect that, if an agreement is not repaid to Nonparty 1, the interest will be lost as of September 17, 2013.

2) 오에스비저축은행은 소외 1이 2013. 9. 17.까지 약정이자 및 연체이자를 상환하지 못하자, 2013. 11. 29. 이 법원 2013타경21899호 로 ▷▷▷아파트를 제외한 나머지 담보물[□□아파트, ▽▽아파트, 이 사건 부동산, 서울 광진구 (주소 4 생략) 임야 2,955㎡ 중 소외 1 지분 24/50]에 관하여 청구금액을 2,604,161,888원으로 하여 임의경매개시 신청을 하였고, 2013. 12. 23. 이 법원으로부터 경매개시결정을 받았다.

C. The defendant's acquisition of claims and the transfer of collateral security

On March 20, 2014, the Defendant acquired all the collateral of KRW 1.778 billion in principal and interest interest of KRW 190,302,470 in interest and interest of KRW 190,470 in interest of Nonparty 1 from the OSB Savings Bank. On April 3, 2014, the OSB Savings Bank notified Nonparty 1 of the transfer of the claim. Moreover, on April 7, 2014, the Defendant completed the supplementary registration of the transfer of the right to collateral on the ground of the transfer of the final claim.

D. The repayment of debt by Nonparty 1

1) 소외 1은 2013. 12.경 ▷▷▷아파트를 11억 원에 매각한 후 오에스비저축은행에게 772,074,581원을 변제하였다. 또한 소외 1은 2015. 6. 19.에 ▽▽아파트를, 2015. 7. 7. □□아파트를 각 매각하여, 피고에게 합계 16억 5,000만 원(= ▽▽아파트 매각대금 중 10억 원 + □□아파트 매각대금 중 6억 5,000만 원)을 변제하였고, 이에 피고는 ▽▽아파트와 □□아파트에 대한 경매신청을 취하하였다.

2) Meanwhile, on December 16, 2014, the non-party 24/50 of the 2,955 square meters of forest land in Gwangjin-gu Seoul Special Metropolitan City ( Address 4 omitted) was admitted to Seoul Special Metropolitan City.

E. Establishment of the plaintiffs' right to collateral security

On August 19, 2013, Plaintiff 1 completed the establishment registration of a mortgage on the instant real estate and the instant real estate on August 19, 2013 with Nonparty 24/50 of the 2,955 square meters of forest land in Gwangjin-gu, Seoul as a joint collateral, with the maximum debt amount of KRW 79.9.7 million as of August 19, 2013, and Nonparty 1 as the debtor. Plaintiff 2 completed the establishment registration of a mortgage on August 19, 2013 with Nonparty 24/50 of the instant real estate as of the same day and the instant real estate as of the 2955 square meters of forest land in Gwangjin-gu, Seoul as of August 19, 2013, with the Seoul Eastern District Court No. 54627, Aug. 19, 2013, with the maximum debt amount of KRW 58.3 million as the debtor and Nonparty 1 as the debtor.

F. Progress, etc. of the instant auction procedure

1) In the instant auction procedure, on March 7, 2014, Plaintiff 2 submitted a claim statement stating that the amount of the claim is KRW 583 million. On the same day, Plaintiff 1 submitted a claim statement stating that the amount of the claim against Nonparty 1 is KRW 865.7 million.

2) On December 13, 2017, the Defendant submitted a claim statement stating that the remaining claim amount against Nonparty 1 was KRW 1,558,764,908 (= Principal KRW 960,251,80 + overdue interest + KRW 598,513,108).

3) On January 10, 2018, a court of execution prepared a distribution schedule that distributes the amount of KRW 2,503,946,653 to the Defendant, who is the first-class creditor and the second-class mortgagee, the second-class mortgagee, to Nonparty 3, the second-class mortgagee, the second-class mortgagee, and to Nonparty 4, the third-class mortgagee, the third-class mortgagee, to the third-class mortgagee, the amount of KRW 989,946,653.

4) The Plaintiffs appeared on the date of distribution and raised an objection against Plaintiff 2 regarding KRW 583 million among the dividends against the Defendant, and Plaintiff 1 filed the instant lawsuit on January 16, 2018.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 4, 6, Eul evidence Nos. 1 through 13 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The assertion and judgment

A. Judgment on the main claim

1) The plaintiffs' assertion

이 사건 각 대출 당시 각각의 대출금 원금의 120%에 해당하는 금액을 채권최고액으로 하여 각각 다른 부동산에 근저당권을 설정하였고, ▷▷▷아파트 매각자금 11억 원 중 전액 또는 채권최고액인 8억 6,400만 원을 모두 변제받을 수 있었음에도 오로지 이 사건 3차 대출금 채무에 대해서만 변제를 받았으며, 소외 1로부터 ▽▽아파트 매각대금 중 10억 원, □□아파트 매각대금 중 6억 5,000만 원을 변제받고 ▽▽아파트와 □□아파트에 대한 경매를 취하해주기도 하였는바, 이를 종합하면 이 사건 근저당권의 피담보채무는 이 사건 3차 대출금채무로 한정된다. 그런데 이 사건 3차 대출금채무는 오에스비저축은행이 2013. 12.경 소외 1로부터 772,074,581원을 변제받음으로써 소멸하였다. 따라서 이 사건 배당표 중 피고에게 배당된 8억 6,400만 원은 후순위근저당권자인 원고 1에게 7억 9,970만 원이, 원고 2에게 6,430만 원이 각각 배당되어야 한다.

2) Determination

A) Relevant legal principles

Unless there exist special circumstances, a contract to establish a mortgage is a disposal document. However, in the event that the contract is a contract which is uniformly printed and used by a financial institution, etc. in the form of a general transaction clause, the scope of the secured obligation in the contract clause includes all the obligations existing or future in addition to the loan obligation granted by the establishment of the right to collateral security. However, it is reasonable to view that the scope of the secured obligation in accordance with the printed terms and conditions of the contract to interpret the scope of the secured obligation in light of various circumstances, such as the background leading up to the conclusion of the contract to establish the right to collateral security, loan practices, relationship between each obligation and the maximum debt amount of the right to collateral security, and securing separate collateral against other obligations, it goes against the general loan practices of the financial institution, and it is reasonable to interpret the parties’ intent as the purport of the contract only as the secured obligation of the relevant loan, and it can be ruled that the comprehensive provision on the secured obligation of the contract is merely an example of a general transaction clause printed on the same terms and conditions (see, e.g., Supreme Court Decision 2005Da5265).

B) Determination

Based on the above legal principles, it is insufficient to view that the evidence submitted by the plaintiffs alone was insufficient to conclude that the ESB Savings Bank and Nonparty 1 agreed to only the third loan claims of this case as the collateral obligation of this case, and there is no other evidence to acknowledge this otherwise.

Rather, the following circumstances revealed in addition to the purport of each of the aforementioned evidence, namely, ① the document to establish a mortgage was printed in the same text as to four types (specific debt, specific collateral, limited collateral, and comprehensive collateral) different from the scope of the secured obligation. Of them, the limited collateral column stated that “the obligor currently and subsequently bears all obligations to creditors by means of transactions under the following agreement.” Nonparty 1 selected the limited collateral and stated “general loan” as the type of transaction with the limited collateral; ② both the first and second loans are the same as the type of transaction with the limited collateral as provided in the instant contract; ③ Es.BB bank opened an application for voluntary auction with the amount of 2,604,161,888 won, which included the total amount of each of the loans of this case, as the total amount of the loans of this case and the amount of each of the loans of this case was set separately from the specific maximum debt amounts of 120 million won, and thus, it is difficult to view that each of the loans of this case was set separately as the specific maximum debt amounts of each of this case.

Therefore, under the premise that the secured debt of the instant right to collateral security is limited to the third loan debt of the instant case, the Plaintiffs’ primary claim is without merit.

B. Determination on the conjunctive claim

1) The plaintiffs' assertion

설령 이 사건 근저당권의 피담보채무가 이 사건 3차 대출금채무뿐만 아니라 이 사건 1차, 2차 대출금채무도 포함된다고 하더라도, ① 이 사건 근저당권의 피담보채무가 확정된 후 피고가 이 사건 근저당권으로 변제받을 수 있는 금액은 8억 6,400만 원에 불과한데, 오에스비저축은행이 공동담보물인 ▷▷▷아파트 매각대금으로 이 사건 3차 대출금 중 772,074,581원을 변제받았으므로, 피고가 이 사건 경매절차에서 우선변제받을 수 있는 금원은 91,925,419원(= 채권최고액 8억 6,400만 원 - 변제금액 772,074,581원)으로 축소되어야 한다. 또한 ② 오에스비저축은행은 ▷▷▷아파트 매각자금에서 채권최고액 8억 6,400만 원을 전액 변제받을 수 있었음에도 772,074,581원만 변제받고, 나머지 금액으로 소외 3에게 69,605,569원을 변제받도록 하여 위 69,605,569원만큼의 채권을 포기하였는바, 결국 피고는 이 사건 경매절차에서 피고가 배당받을 수 있는 금액은 22,319,850원(= 위 91,925,419원 - 위 69,605,569원)으로 감액되어야 한다.

2) Determination

A) As to the assertion that the secured debt with preferential right to payment has been reduced to KRW 91,925,419

(1) Confirmation of secured debts

이 사건 근저당권의 피담보채무에 이 사건 1차, 2차, 3차 대출금채무가 포함됨은 위 가. 2) 나)항에서 본 바와 같고, 근저당권자가 피담보채무의 불이행을 이유로 경매신청을 한 경우에는 경매신청 시 근저당권의 피담보채무가 확정되며 이는 공동저당물 중 일부에 대하여 경매신청이 되더라도 마찬가지라고 할 것인바, 오에스비저축은행이 ▷▷▷아파트를 제외한 나머지 부동산에 대하여 임의경매를 신청한 2013. 11. 29. 이 사건 근저당권의 피담보채무는 모두 확정되었다.

(2) Scope of preferential rights to payment

The right to collateral security (right to collateral security) is to secure the principal, interest, penalty, non-performance of obligation, and the cost of executing the right to collateral security (right to collateral security). If this exceeds the maximum debt amount, the right to collateral security (right to collateral security) is to cancel the right to collateral security (right to collateral security) with only a partial maximum debt amount and the cost of executing the right to collateral security (right to collateral security), and if the right to collateral security (right to collateral security) is not satisfied with the full debt amount, then the right to collateral security (right to collateral security) is still effective with the remaining debt until the full debt amount is repaid. In addition, even if the creditor and the right to collateral security (right to collateral security) sell the secured debt at will and obtain some satisfaction from the debtor by performing the right to collateral security (right to collateral security) with the right to collateral security (right to collateral security) and thus, it cannot be deemed that the right to collateral security (right to collateral security (right to collateral security (right to collateral security) has already been appropriated or received within the scope of the maximum debt amount of the maximum debt amount.

따라서 오에스비저축은행이 채무자인 소외 1로부터 이 사건 근저당권의 공동담보물인 ▷▷▷아파트의 매매대금으로 이 사건 근저당권의 피담보채권을 일부 변제받았다고 하더라도 위 금원이 원고들의 주장과 같이 우선변제권이 있는 피담보채무에 우선 충당되는 것이 아니라 변제충당의 일반 법리에 따라 오에스비저축은행의 소외 1에 대한 채권들에 충당되어야 하고, 오에스비저축은행은 그 변제충당 후 나머지 채권에 대하여 채권최고액을 한도로 우선변제권을 가진다고 보아야 한다.

(3) Satisfaction of performance and existence of secured obligation

오에스비저축은행과 소외 1이 ▷▷▷아파트 매각대금 중 772,074,581원으로 이 사건 3차 대출금채무에 충당하기로 합의한 사실은 당사자 사이에 다툼이 없는바, 오에스비저축은행은 위 변제충당 후 이 사건 근저당권의 나머지 피담보채권인 이 사건 1차, 2차 대출금채권에 대하여 여전히 채권최고액을 한도로 우선변제권을 가진다고 봄이 상당하고, 원고들이 제출하는 증거들만으로는 이 사건 1차, 2차 대출금채무가 변제 등으로 모두 소멸하였다고 보기 부족하며, 달리 이를 인정할 증거가 없다.

B) As to the assertion of waiver of claim

소외 1이 ▷▷▷아파트 매각대금으로 오에스비저축은행에 772,074,581원, 소외 3에게 69,605,569원을 각 변제한 사실은 당사자 사이에 다툼이 없으나, 위 인정 사실 및 원고들이 제출하는 증거들만으로는 피고가 위 변제액 69,605,569원 상당의 채권을 포기하였다고 보기 부족하고, 달리 이를 인정할 증거가 없다.

C) Sub-determination

Therefore, the plaintiffs' preliminary claims are without merit.

3. Conclusion

The plaintiffs' primary and conjunctive claims are without merit, and all of them are dismissed. It is so decided as per Disposition.

Judge Shin Dong-hun (Presiding Judge)