[1] The criteria for determining whether a person has a single individual obligation (i.e., grounds for occurrence) and, in a case where a secured obligation secured by the right to collateral security consists of several times of loans, whether the secured obligation constitutes several obligations (affirmative)

[2] In a case where the dividend distributed at an auction to exercise a security right is insufficient to extinguish all of the secured claims held by the secured party, the method of satisfaction of the claim (=legal satisfaction of the claim)

[3] In a case where a creditor received a payment of auction price based on the joint mining right as a partial performance among several debts secured by the right to collateral security, the method of determining the profit of repayment for the legal satisfaction of the claim and the method of satisfaction of the claim

[4] In case where a person other than the principal obligor is the person performing the obligation, whether the obligation secured by the bill issued or endorsed by the person performing the obligation exceeds the other obligation (affirmative)

[5] In the case where the principal obligor is a reimbursement, whether there is a difference between the obligation issued or endorsed by a third party as security and the other obligation (negative), and whether the obligation issued or endorsed by the principal obligor as security exceeds the other obligation (affirmative)

[6] In determining the order of statutory appropriation of performance, whether the obligation for which repayment has been postponed shall be the same as the obligation for which payment period has not yet arrived until the grace period (affirmative)

[1] The issue of satisfaction of an obligation arises when the obligor bears several obligations for the same kind of obligation to the same obligee. The issue of satisfaction of an obligation must be determined depending on an ordinary cause. In a case where the secured obligation secured by the right to collateral security consists of several times of loan, the secured obligation is different, and thus, it should be deemed that the secured obligation has different causes.

[2] In a case where the dividend distributed at an auction to exercise the security right is insufficient to extinguish all of the secured claims held by the security right holder, the dividend shall be appropriated according to the method of statutory appropriation for performance under Article 477 of the Civil Code.

[3] The profit for statutory appropriation of performance should be determined on the basis of the person who has performed the obligation, and in cases where a creditor receives dividends for a successful bid price based on the joint mining right as a part of several debts secured by the right to collateral security, the dividends shall be deemed to have been repaid by the joint mining right holder at the ratio of joint appropriation. Therefore, the profit for statutory appropriation of performance of the above dividends should be separately decided by the joint mining right holder on the above several obligations, and then the amount equivalent to the ratio of each joint mining right holder's joint appropriation of performance among the above dividends should be individually appropriated according to the order of statutory appropriation

[4] In a case where a person other than the principal obligor is the person performing the obligation, it shall be deemed that the obligation secured by the bill issued or endorsed by the person performing the obligation exceeds the other obligation.

[5] In the case where the principal obligor is the person performing obligations, it shall be deemed that there is no difference between the obligation issued or endorsed by a third party as security and the obligation that is otherwise endorsed. However, the obligation issued or endorsed by the principal obligor as security is more than the other obligation.

[6] In determining the order of statutory appropriation of performance, the obligation for which repayment is suspended shall be the same as the obligation for which payment period has not yet arrived at the time of postponement.

[1] Articles 357 and 477 of the Civil Act / [2] Article 477 of the Civil Act / [3] Article 477 of the Civil Act, Articles 19 and 34 of the Mining Industry Act / [4] Article 477 of the Civil Act / [5] Article 477 of the Civil Act / [6] Article 477 of the Civil Act

[2] [5] Supreme Court Decision 96Da52649 delivered on July 25, 1997 (Gong1997Ha, 2676) / [2] Supreme Court Decision 95Da5504 delivered on May 10, 1996 (Gong196Ha, 1818), Supreme Court Decision 98Da6763 delivered on July 10, 1998 (Gong198Ha, 2084)

Plaintiff (Counterclaim Defendant) (Attorney Han-ho et al., Counsel for defendant-appellant)

Defendant (Counterclaim Plaintiff)

Seoul High Court Decision 98Na26783, 26790 delivered on March 26, 199

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. 원심판결 이유에 의하면, 원심은, 원고가 소외 주식회사 삼복광업(이하 삼복광업이라고만 한다)이 피고(삼복광업의 대표이사이다) 앞으로 발행하고, 피고로부터 원고 앞으로 배서(지급거절증서 작성의무가 면제됨)가 되어 있는 액면금 420,000,000원, 발행일 1994. 4. 16., 지급기일 1994. 8. 30.로 된 약속어음(갑 제1호증의 1, 2, 이하 이 사건 약속어음이라고 한다)을 소지하고 그 지급기일에 지급장소에서 지급제시하였으나 지급거절된 사실을 인정하고, 배서인인 피고에 대하여 위 약속어음금 중 원금 잔액 금 232,199,802원 및 이에 대한 지연손해금의 지급을 구하는 원고의 청구에 대한 피고의 채무소멸 항변에 대하여 판단하기를, 거시 증거에 의하여, (1) 소외 1은 1994. 3. 15.부터 1994. 5. 6.까지 위 삼복광업 및 위 삼복광업의 실질적인 소유자인 소외 2에게 합계 금 280,900,000원을 대여하고, 위 소외 2로부터 추가 대여를 요구받자 위 소외 2에게 위 삼복광업의 대표이사인 피고가 배서한 약속어음을 담보조로 교부할 것을 요구하여, 1994. 5. 9. 위 소외 2로부터 이 사건 약속어음을 담보조로 교부받은 후 추가로 위 삼복광업에게 1994. 5. 10. 금 45,000,000원, 1994. 5. 13. 금 90,000,000원을 각 대여하여, 이 사건 약속어음에 의하여 담보되는 대여금채무는 합계 금 415,900,000원이 된 사실, (2) 위 삼복광업은 1994. 5. 25. 부도가 났고, 위 소외 2는 1994. 5. 31. 소외 3을 대표이사로 하여 소외 주식회사 삼복(이하 삼복이라고만 한다)을 새로이 설립하였으며, 위 삼복은 원고로부터 운영자금으로 1994. 7. 8. 금 300,000,000원, 1994. 9. 7. 금 100,000,000원 등 합계 금 400,000,000원을 차용한 사실, (3) 위 삼복은 위 삼복광업의 채무 일체를 승계하였고, 1994. 9. 7. 원고와 사이에 위 삼복광업이 위 소외 1로부터 차용한 금원을 포함하여 그 동안 위 삼복과 원고, 위 소외 1 사이에 있었던 금전대차관계에 대한 총 대여원금을 금 947,280,000원으로 확정하고, 이를 1994. 10. 10.까지 원고에게 변제하기로 약정하였으며, 위 대여금의 지급을 담보하기 위하여 1994. 8. 22. 피고와 삼복, 소외 4(소외 2의 동생)의 공동소유인 판시 광업권(이하 이 사건 광업권이라고 한다)에 관하여 피고와 위 소외 4의 동의를 받아 채권최고액을 금 1,300,000,000원, 채무자를 위 삼복, 근저당권자를 원고로 하는 근저당권설정등기를 경료한 사실, (4) 위 삼복은 위 변제기까지 위 대여금 947,280,000원을 변제하지 못하였고, 이에 원고는 1995. 5. 11. 대전지방법원 서산지원으로부터 위 근저당권에 기한 광업권임의경매 개시결정을 받아, 그 후 진행된 위 임의경매절차에서 1996. 9. 2. 금 1,134,013,106원을 배당받은 사실을 인정한 다음, 일반적으로 어음채무가 민사채무보다 변제이익이 크므로 이 사건 배당금은 원고가 구하는 이 사건 약속어음금채무와, 원고와 삼복 사이에 확정된 위 금 947,280,000원의 대여금채무 중 이 사건 약속어음에 의하여 담보되는 위 금 415,900,000원을 제외한 나머지 대여금채무 가운데 변제이익이 큰 이 사건 약속어음금채무에 먼저 변제충당되어야 할 것이고, 따라서 이 사건 배당금 1,134,013,106원은 먼저 이 사건 약속어음금채무와 위 대여금채무의 이자에 충당되어야 하고 남은 잔액이 이 사건 약속어음금채무와 위 대여금채무의 원금에 충당되어야 하는데, 이 사건 배당금 중 이자에 충당되고 남은 잔액은 원고 주장에 의하더라도 금 718,354,706원에 달하고, 위 잔액은 이 사건 약속어음금채무를 전액 소멸시키기에 충분한 금액임이 계산상 명백하므로 결국, 이 사건 약속어음금채무는 원고가 위 근저당권의 실행에 의하여 이 사건 배당금 1,134,013,106원을 배당받음으로써 변제충당에 의하여 전액 소멸하였다는 이유로 원고의 청구를 기각하였다.

2. A. The issue of satisfaction of an obligation arises when an obligor bears several obligations for the same kind of obligation to the same obligee. The issue of satisfaction of an obligation must be determined depending on an ordinary cause. Since a secured obligation secured by the instant mining right collateral security right collateral consists of several debts leased over several times, and the cause of the occurrence differs, it should be viewed as several obligations. On the other hand, in a case where the dividend distributed at an auction to exercise a security right falls short of extinguishing the whole of several secured claims owned by a secured party, it shall be appropriated according to the method of statutory satisfaction of an obligation under Article 477 of the Civil Act (see, e.g., Supreme Court Decisions 96Da52649, Jul. 25, 1997; 98Da6763, Jul. 10, 1998). Therefore, we cannot accept as an independent opinion that the provisions on satisfaction of an obligation under the instant mining right collateral cannot be applied as a single obligation.

B. The Plaintiff holding the Promissory Notes as a collateral may refuse to return the Promissory Notes to the obligor and seek payment of the remainder of the secured obligation even if part of the secured obligation under the Promissory Notes was paid out of the secured obligation under the said Promissory Notes, based on the inseparability of the secured right (However, the theory of lawsuit asserts that the foregoing theory applies to the case where the secured obligation is a single obligation, but the above theory applies regardless of whether the secured obligation is one or several obligations).

However, according to the reasoning of the judgment below and the record, 420,00 won for loans of 10,000 won for 40,000 won for 10,000 won for 40,000 won for 10,000 won for 40,000 won for 40,000 won for 10,000 won for 40,000 won for 10,000 won for 40,000 won for 90,00 won for 10,000 won for 10,000 won for 40,000 won for 9,00 won for 9,00 won for 10,00 won for 9,00 won for 10,00 won for 9,00 won for 9,00 won for 10,00 won for 10,000 won for 9,000 won for 9,000 won for 9,00 won for each loan (the above loan 10,00000 won for )

C. The legal appropriation of a claim should be determined on the basis of the person performing the obligation. If a creditor is paid dividends out of several debts secured by the joint mining right, the dividends shall be deemed to have been paid out by the joint mining right holder at the ratio of joint payments. Thus, the payment profit for statutory appropriation of the above dividends shall be determined separately by the joint mining right holder, and if a person other than the principal debtor is the person performing the obligation, the amount equivalent to the ratio of each joint mining right holder's joint payments out of the above dividends shall be determined according to the order of statutory appropriation of payment. In addition, if a person who is not the principal debtor is the person performing the obligation, it shall be deemed that the amount secured by the bill issued or endorsed by the third party is more than the amount of other obligations. If the principal debtor is the person performing the obligation, it shall be deemed that there is no difference between the amount of payment by a promissory note issued or endorsed by the third party as a collateral and the amount of payment by a bill issued or endorsed by the principal debtor is not reached (see Supreme Court Decision 96Da52649, Jul. 25, 199, 199).

As seen above, the Promissory Notes (No. 1,2) issued and endorsed by the defendant as loans of 300,90,000 won out of the loans of this case and the Promissory Notes (No. 4-7) jointly issued by 300,000,000 won and the Promissory Notes (No. 4-7) issued by 300,000 and the Promissory Notes (No. 4-13, 14-4) issued by 300,000 and the Promissory Notes (No. 4-7) established by 40,000 are guaranteed all of the loans of this case. On the other hand, since the Promissory Notes (No. 4-7) were the joint mining rights of 40,000,000 won, the dividends arising from the successful bid shall be deemed to have been repaid by 90,0000 won in proportion to the amount of the loans of this case and the amount of the loans of this case No. 14-1,000,04,000.

Therefore, the court below should have calculated the balance of the Promissory Notes in this case by considering the amount of dividends arising from the voluntary auction of the mining right of this case by dividing them into the amount calculated according to the ratio of the share maintained by the defendant, 3rd and the above non-party 4's joint appropriation. Nevertheless, the court below determined the payment profits in order to determine the priority order of appropriation of dividends arising from the auction of this case on the basis of 3rds only the premise that the principal debtor is a mining right holder. Further, the court below erred in the misapprehension of legal principles as to payment and the legal appropriation of the loans secured by the Promissory Notes of this case on the premise that, in determining the payment profits in order to determine the priority order of appropriation of dividends arising from the auction of this case, 3rds only are the principal debtor as the mining right holder, and the Promissory Notes of this case was issued on the premise that the amount of the loans secured by the Promissory Notes of this case

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)