In case where part of the claim was transferred or subrogated before the claim secured by the right to collateral security becomes final and conclusive, whether the transferee or subrogation can seek the transfer of the right to collateral security (negative)

Since the right to collateral security is a mortgage that guarantees a debt remaining after calculating a certain amount of future claims arising from a continuous transaction relationship within the scope of a certain limit, the right to collateral security shall be continuously increased or decreased until the transaction is terminated. Therefore, in cases where the transaction is ongoing, that is, where the right to collateral security is partially transferred or subrogated before the right to collateral security is determined, the right to collateral security shall not be transferred to the transferee or subrogation.

Articles 357(1) and 481 of the Civil Act

(Attorney Lee Jae-ho, Counsel for defendant-appellant)

Choung Bank (Law Firm, Kim & Lee, Attorneys Lee Jae-sik et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 95Na14932 delivered on October 31, 1995

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. On the first ground for appeal

A. According to the reasoning of the lower judgment, the lower court recognized the following facts by comprehensively taking account of the fact that there is no dispute between the parties and the evidence adopted in its judgment.

On June 27, 1992, the river branch of the Plaintiff Corporation guaranteed the obligation to the Defendant Bank by issuing a credit guarantee agreement of KRW 100,00,000 from June 27, 1992 to June 26, 1993, with the limit of the principal amount of KRW 700,00,000 and interest thereon within the limit of KRW 50,00,00,00 from the Defendant Bank 10 to June 26, 1993, the Defendant Bank guaranteed the above obligation to the Defendant Bank. On the other hand, on July 29, 1992, the new Franchi was also 10,00,000,000,000, and the interest debt amount of KRW 10,000 and KRW 20,00,000,000 from the Defendant Bank 20,000,000 per each of the above credit guarantee charges of KRW 196,54,000.

On the other hand, on May 31, 198, the new branch of the Defendant Bank established a new loan on the real estate owned by Nonparty 1, who is the representative director of New Franchi, as indicated in the attached Table 1 of the judgment below, for the purpose of a bill loan, bill discount, deed loan, payment guarantee (including bond guarantee), sales bond transaction, mutual installment transaction, securities lending, foreign exchange, and other credit transactions, obligations on the bill or check, guaranteed liability, interest liability, overdue loan, obligation on the bill or check, obligation to the obligor, insurance premium, and all other incidental obligations on the credit transaction, including the expenses to be borne by the obligor or the founder, as the secured debt, and the new maximum debt amount has been paid as KRW 90,00,000,000, out of 100,000 won as shown in the attached Table 1 of the judgment below. The defendant Bank established a new mortgage agreement No. 300, Jun. 15, 198 and the debtor stated the same maximum debt amount as the secured debt amount as 1000,001.

4. The above representative director: (a) on December 26, 1991, the non-party 1, the non-party 2 established as promoters: (b) on the guarantee amount of 143,00,000 won in the amount of bill discount; (c) on April 30, 1992, on the guarantee amount of 390,000 won in addition to the above discount on the guarantee amount of 107,000,000 won in the guarantee amount of 4. The above guarantee amount was 0,000 won in the guarantee amount of 90,000 won in the guarantee amount of 2.3.0,000 won in the guarantee amount of 9.3.0, on January 29, 1992, the bank issued the above guarantee amount of 190,000 won in the guarantee amount of 90,000 won in the guarantee amount of 3.06,000 won in the guarantee amount of the defendant bank; and (d 9.400,000,0000.

B. After recognizing the above facts, each contract to establish a new mortgage on three occasions between the non-party 1 and the defendant bank and the defendant bank was entered in the contract, and it is clear that the new mortgage agreement was entered into between the defendant bank 1 and the defendant bank 2 on three occasions, and that the new mortgage loan was not entered in the new mortgage loan and the new mortgage loan, and that the new mortgage loan was not entered in the new mortgage loan with the defendant bank 1 and the new mortgage loan 9. The new mortgage loan was not entered in the new mortgage loan 9. The new mortgage loan 9. The new mortgage loan 9. The new mortgage loan 9. The new mortgage loan 9. The new mortgage loan 9. The new mortgage loan 9. The new mortgage loan 2. The new mortgage loan 9. The new mortgage loan 9. The new mortgage loan 9. The new mortgage loan 9. The new mortgage loan 9. The new mortgage loan 9. The new mortgage loan 1 and the new mortgage loan 9. The new mortgage loan 1 and the new mortgage loan 9.3.

C. In light of the records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error of law that misleads the scope of the secured debt against the rule of experience and logic, as otherwise alleged in the ground of appeal. The ground of appeal pointing this out cannot be accepted.

2. On the second ground for appeal

Article 8 of the Credit Guarantee Terms and Conditions of this case is a provision for the defendant bank to guarantee that the defendant bank is able to preferentially repay other claims, the repayment interest of which is larger than the claim in question which is guaranteed by the plaintiff's guarantee at the time of satisfaction of payment by the defendant bank, and there is only a provision concerning satisfaction of payment after a credit guarantee accident occurred (e.g., where a claim is satisfied by the exercise of a security right, etc.) and the above provision is merely a provision concerning satisfaction of payment after the occurrence of the credit guarantee accident (for instance, where a claim is satisfied by the exercise of a security right, etc.). On the contrary, even if the plaintiff partially performed the guaranteed obligation, the above provision does not mean that the plaintiff acquires the right to priority over the defendant bank by his subrogation and the defendant bank shall implement the registration procedure for the transfer of the security right to the plaintiff. Thus, the judgment of the court below is just and there is no error in the misapprehension of the credit guarantee agreement. The ground for appeal pointing this out

3. On the third ground for appeal

According to the reasoning of the judgment below, the court below determined that the plaintiff's performance of the guaranteed obligation is merely a partial subrogation of the obligation, and since the plaintiff's performance of the guaranteed obligation is only a part of the obligor's obligation, it can not be exercised solely by the obligee, on the other hand, as part of the obligee cannot be claimed for the execution of the additional registration procedure against the plaintiff's bank since the plaintiff's performance of the secured obligation against the defendant bank was recognized to have been subrogated as a performance of the guaranteed obligation of KRW 734,625,070, which is the principal and the agreed interest of the principal and the agreed interest of the obligation among the obligation against the defendant's bank Doclary branch secured by each of the instant collateral in this case. In this case, the court below determined that the plaintiff's performance of the guaranteed obligation cannot be claimed for the additional registration procedure as part of the obligor's claim against the defendant bank, unless otherwise stipulated.

The right to collateral security refers to a mortgage that guarantees a certain amount of debt remaining after calculating a claim for the settlement term, which is caused by a continuous transaction relationship, and the transaction is continuous increase or decrease until the termination of the transaction. Therefore, the right to collateral security cannot be transferred to the transferee or the subrogation if part of the claim is transferred or subrogated before the claim for collateral security is finalized. According to the facts duly established by the court below, the scope of the right to collateral security secured by each of the instant collective security claims cannot be determined because the scope of the joint and several debt secured by the instant collective security claims cannot be determined because it is clear that the secured claim of the instant collective security claims is confirmed at the time of the Plaintiff’s subrogation. Thus, the court below’s rejection of the Plaintiff’s additional registration procedure for the transfer of the right to collateral security is justifiable, and there is no error in the misapprehension of legal principles as to the right to claim the transfer of collateral security claims based on subrogation in the judgment below.

4. On the fourth ground for appeal

As seen earlier, the court below determined that the scope of the secured debt secured by each of the instant collateral security claims cannot be determined since the principal debt for the Defendant Bank Newcomer's Defendant Bank's Defendant Bank's new loan branch was not finalized. In light of the records, the court below's measures are just, and it did not err in the misapprehension of the legal principle as otherwise alleged in the ground of appeal. The ground of appeal pointing this out is not acceptable.

5. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)