[1] Whether a third party, who acquired the ownership of the mortgaged real estate, may invoke the right of the mortgagee of the mortgaged real estate as to the confirmation of the secured obligation and the confirmation of the secured obligation (affirmative)

[2] In a case where a third party who acquired ownership of a mortgaged real estate by subrogation requests cancellation of the right to collateral security by paying a part of the secured obligation on his/her behalf, whether it can be deemed that the declaration of intent is included in determining the secured obligation (affirmative)

[3] The case concerning the calculation method of the remaining secured debt in case where the third party purchaser of the mortgaged real estate terminates the contract to establish a mortgage by paying a part of the secured debt on behalf of the third party

[1] The term "mortgage" means a mortgage established by reserving only the maximum amount of the debt to be secured and reserving the determination of the debt in the future. In such a case, the extinction or transfer of the debt until the debt to be secured is not affected by the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the collateral is entitled to claim the extinction of the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the collateral, in principle, if the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the collateral security has been extinguished and the debtor has no intention to continue transactions by borrowing the right to the right to the right to the right to the right to the right.

[2] In a case where a third party who purchased a collateral and completed a registration of transfer of ownership by subrogation of a part of the collateral obligation to the mortgagee and demands the cancellation of the collateral on the ground of the extinguishment of the collateral obligation, such declaration of intent may be deemed to include an expression of intent to terminate the collateral contract as a third party who acquired the ownership of the collateral property and to confirm the collateral obligation. Therefore, the collateral obligation of the collateral security becomes final and conclusive in accordance with the relevant contract.

[3] The case concerning the calculation method of the remaining secured debt in case where the third party purchaser of the mortgaged real estate terminates the contract to establish a mortgage by subrogation of a part of the secured debt

[1] Article 357 of the Civil Act / [2] Articles 105, 357, and 364 of the Civil Act / [3] Articles 105, 357, and 364 of the Civil Act

[1] [2] Supreme Court Decision 65Da1617 decided Dec. 7, 1965 (Public Notice) / [1] Supreme Court Decision 61Da1149 decided Mar. 22, 1962 (No. 10-1, 239) Supreme Court Decision 66Da68 decided Mar. 22, 1966 (No. 14-1, 148) / [2] Supreme Court Decision 85Da1046 decided May 26, 1987 (Gong1987, 1046)

Plaintiff (Attorney Cho Jae-soo, Counsel for the plaintiff-appellant)

Cho Heung Bank (Attorney Han Han-sung et al., Counsel for the plaintiff-appellant-appellee)

Seoul District Court Decision 2000Na59615 delivered on June 26, 2001

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

1. Judgment on the mistake of facts

According to the reasoning of the judgment below, with respect to the scope of the secured obligation of this case which was established on the real estate of this case by the plaintiff, the court below determined that the scope of the secured obligation belongs to the non-party 2's secured obligation as well as the so-called comprehensive collateral loan, bill loan, instrument loan, payment guarantee, sales claim transaction, payment guarantee, payment guarantee, loan, credit transaction, credit card transaction, credit card transaction, office bond transaction, and other credit transaction, and all incidental obligations such as credit transaction such as bills or checks, guaranteed obligation, interest obligation, overdue obligation, obligation on bills or checks, obligor or lender, expenses for delay, insurance premium, etc.

In particular, according to the testimony of the witness of the first instance court, it was true that the maximum amount of the secured debt was set at KRW 120 million at the time of the establishment of the right to collateral. However, the above non-party 1 did not terminate the contract of establishing the right to collateral even after full repayment of the loan that was incurred at the time of the establishment of the right to collateral security. Since the above non-party 1 did not terminate the contract of establishing the right to collateral security, it did not terminate the additional loan with the above right to collateral security since it was later long before the time when the plaintiff purchased the real estate of this case, it was confirmed by the employee of the defendant bank that the above non-party 1's loan amount was eight million won after the establishment of the right to collateral security at the time of the purchase of the right to collateral security at the time of the above non-party 1's purchase of the right to collateral security, the court below's finding that the right to collateral security of this case was a collateral security and its determination cannot be seen as a reasonable determination of the maximum amount of the loan amount as 1.

2. Judgment on misapprehension of legal principles

A. According to the reasoning of the judgment below, the court below determined that the secured debt of this case includes the debt borne by Nonparty 1 with respect to the debt borrowed by Nonparty 2 against the Defendant by joint and several sureties. The defendant was obligated to cancel the mortgage of this case after receiving payment of the principal and interest as to the loan amount of KRW 3,751,402 on December 14, 1998 and the loan amount of KRW 9 million on April 26, 1999.

B. The term "mortgage" means a mortgage established by reserving only the maximum amount of the claim to be secured and reserving the determination of the obligation in the future. In this case, since the extinction or transfer of the obligation until the debt to be secured is not affected by the right to collateral, a third party who acquired the ownership of the mortgaged real estate may claim the extinction of the mortgaged real estate after the debt is finalized within the scope of the maximum amount of the debt. The determination of the secured obligation is, in principle, established in a contract establishing the term of the right to collateral security or a contract establishing a settlement term in the basic contract secured by the right to collateral security in principle, at the time the term of the right to collateral security expires or the settlement term comes into existence. However, in this case, if the debtor does not wish to continue transactions such as the whole claim secured by the right to collateral security expires and the debtor borrows new funds from the creditor, the person who established the right to claim the cancellation of the right to claim the creation of the mortgaged real estate may also be invoked by cancelling the contract and cancelling the ownership of the mortgaged real estate at any time before the expiration of the term of the right to collateral security.

C. In the instant case, according to the document establishing a mortgage (Evidence B) concluded between the non-party 1 and the defendant, the duration of the right to collateral security shall not be determined: Provided, That when three years have elapsed from December 20, 1995, which is the date of the contract, the founder may express his/her intent in writing, and at the expiration of forty-five days from the date of arrival of the obligee, the termination shall take effect upon the expiration of forty-five days from the date of arrival of the obligee. Meanwhile, in full view of the records of the instant case, such as the testimony of the non-party 1, the Plaintiff purchased the instant mortgaged real estate and registered its ownership transfer in the future. On November 2, 1999, the Plaintiff requested the Defendant to cancel the right to collateral security contract on account of the extinguishment of the obligation of the above non-party 1, the Plaintiff’s declaration of intent to cancel the right to collateral security contract should not be deemed as having become final and conclusive as the date of termination of the contract (see, e.g., Supreme Court Decision 2007Da165167.197.

However, the Plaintiff’s subrogation of the above non-party 1’s debt amounting to eight million won is premised on the confirmation of the secured debt, and thus, it cannot be deemed that the Plaintiff treated the secured debt as partial extinguishment of the debt incurred before determining the secured debt after the lapse of forty-five days from the date the Plaintiff made the subrogation, and further extends up to the maximum debt amount of eight million won, which is the maximum debt amount.

Therefore, the plaintiff can claim cancellation of the right to collateral security of this case after discharging the secured debt within the scope of KRW 10 million remaining after deducting the amount of KRW 8 million which has already been subrogated at the maximum debt amount of KRW 18 million. However, the court below held that the plaintiff can claim cancellation of the right to collateral security of this case after discharging the entire amount of the principal and interest on loan exceeding the above amount. Thus, the court below did not err by misapprehending the legal principles on the confirmation of the secured debt of the right to collateral security, by misapprehending the meaning of the subrogation made by the plaintiff, and by interpreting the interpretation of the meaning of the subrogation and its expression of intent, the judgment on the remaining amount of the obligation secured by the right to collateral security of this case, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)