Effect of a mortgage created in the name of a third party, not a creditor

In principle, a mortgage secured by a claim and its subject cannot vary depending on the incidental nature of the security right, but in the event that a mortgage is created for the security of the claim, there was an agreement between the creditor, the debtor and the third party on the registration of the mortgage in the name of the third party, and in special circumstances where it can be deemed that the claim has been actually reverted to the third party, the registration of the mortgage in the name of the third party is valid.

Articles 186 [title trust], 361, and 369 of the Civil Act

Supreme Court Decision 93Da19153, 19160 delivered on February 8, 1994, 94Da18508 delivered on February 10, 1995

Plaintiff

Defendant

Busan High Court Decision 93Na1145 delivered on June 9, 1994

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

In light of the records, the fact-finding and judgment of the court below as to the point of view of the theory of lawsuit are just and there is no error in the misapprehension of the rules of evidence or the misapprehension of the facts against the rules of evidence. There is no ground for appeal.

In principle, a mortgage secured by a claim and its subject cannot vary depending on the incidental nature of a security right, but if a mortgage is created for the security of a claim, there has been an agreement between the creditor, the debtor, and the third party on the registration of the mortgage in the name of the third party, and in special circumstances where it can be deemed that the claim has been actually reverted to a third party, the registration of the mortgage in the name of the third party shall also be deemed valid (see Supreme Court Decision 94Da18508 delivered on February 10, 1995).

In light of the records, in light of the fact that the non-party corporation, the creditor of this case, was a small-scale company engaged in vessel management agency and crew dispatch, and the registration of establishment of establishment of a mortgage in the name of the defendant, the representative director of the non-party company, for the purpose of securing the plaintiff's credit, was completed under the agreement with the plaintiff, it can be deemed that the non-party company transferred the claim to the defendant by delegation of the above claim and its exercise, and the plaintiff consented to the transfer, and the above claim was actually reverted to the defendant. Thus, the registration of establishment of a mortgage in the name of the defendant is valid. Since the plaintiff did not bear any obligation against the defendant, the court below rejected the plaintiff's assertion that the registration of establishment of a mortgage cannot be deemed null and void by agreement with the plaintiff, because the court below decided that the registration of establishment of a mortgage established by representing the defendant, the representative director of the non-party company, the defendant as the creditor of the non-party company, cannot be deemed null and void by the ground for the above judgment.

Therefore, the appeal is dismissed and all 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 Jae-soo (Presiding Justice)