Whether the legal principles on partial subrogation apply to the exercise of the guarantor's right to indemnity; or

In a case where a person who has a legitimate interest in performance, makes a payment on behalf of a debtor by subrogation, the subrogation shall exercise his right along with the obligee in proportion to the value of the performance which he has effected, and obtain the rights to claim and collateral held by the previous obligee within the limit of the value of performance which has been performed. In this case, the obligee shall have preferential right to payment against a part of the obligor. However, in a case where the obligee has a preferential right to payment against the principal obligor due to such reasons as repayment or other discharge of the principal obligation, etc., the right to indemnity held against the principal obligor is separate from the inherent right owned by the obligee, and barring any special circumstances such as the existence of an agreement between the parties, it does not automatically apply to the right

Articles 441, 442, 482, and 483(2) of the Civil Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

National Agricultural Cooperative Federation (Attorney Kim Sung-ro, Counsel for defendant-appellant)

Attorney Lee Jae-soo, Counsel for defendant-appellant

Gwangju High Court Decision 94Na933 delivered on June 3, 1994

Of the judgment of the court below, the part against the defendant regarding the amount of dividends of KRW 22,113,360 as stated in the distribution schedule of the real estate compulsory auction case No. 915, Jeonju District Court No. 5285, 92, 2580 (Attachment), shall be reversed, and the case shall be remanded to Gwangju High Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below: (1) on October 7, 1989 (it appears that 1987.7" at the time of original adjudication) and November 21 of the same year leased 200 million won to the non-party limited liability company as collateral, 30 million won and 10 million won for each of the above 30-10-6 claims for reimbursement of dividends; (2) on April 18, 1990, the non-party 1 was provisionally seized the building owned by the non-party company as stated in the 30-10-6 claims for reimbursement of dividends to the non-party 40-6 claims for the above 7-10-6 claims for reimbursement of dividends to the non-party company; and (3) on August 10, 1990, the plaintiff notified the non-party company that the amount of dividends would have been paid to the non-party 16-6 claims for reimbursement of dividends to the non-party 3-16-6 claims for the remaining dividends.

However, according to the records, the court below acknowledged that the remaining claims of the plaintiff as of the date of dividends shall be given priority to the right to indemnity against the non-party company, and only if there is the remaining amount after the plaintiff received full reimbursement, there is no evidence supporting the fact that the defendant agreed to receive dividends or reimbursement. However, according to the evidence No. 1 (a contract for partial transfer of collateral security), the defendant, as a guarantor of the non-party company, should be transferred to the defendant in part of the decision on the building of this case from the plaintiff according to the above repayment as to the non-party company at the time when he pays KRW 340,65,613 as guarantor of the non-party company, within the extent that he guarantees the plaintiff's right to indemnity against the non-party company, as a right to indemnity against the non-party company's remaining claims as of the date of the above distribution, should be paid to the non-party company, and even if the defendant exercises the right to indemnity against the non-party company's obligee's right to indemnity against the non-party company's obligee's right to indemnity as well.

Ultimately, the court below recognized the fact of the agreement as stated in its reasoning only based on the macroficial evidence, and interpreted it as stated in its reasoning, and judged that the agreement should be distributed preferentially to the defendant on the ground that it extends to the amount received by the defendant from a provisional seizure for the purpose of preserving his right to indemnity. The court below erred in the misapprehension of the rules of evidence, or in the misapprehension of the intention of the parties, which affected the conclusion of the judgment. The grounds for appeal pointing this out are.

Therefore, among the judgment of the court below, the part against the defendant as to the amount of dividends of KRW 22,113,360 as stated in the distribution schedule of the real estate auction case Nos. 91, 5285, 92, 2580, among the judgment below, shall be reversed, and the case shall be remanded to the court below for a new trial and determination as to this part. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Yong-sik (Presiding Justice)