Where a third party purchaser acquires the above real estate while a person who has made a subrogation of a debt has not made an additional registration of subrogation on the registration of creation of a mortgage on the real estate owned by another person who has pledged his/her property, whether the person who has made a subrogation may subrogate the creditor to the third party (negative)

The purport of the proviso of Article 482 (2) 5 of the Civil Act, which provides for the relationship between the person who has provided another person's obligation and subrogated the creditor, is to apply mutatis mutandis the provisions of subparagraph 1 of the additional registration of the subrogation, which provides for the relationship between the person who has provided another person's obligation and the person who has provided another person's obligation as security, is to ensure that if the person who has provided another person's property as security is to subrogate another person who has provided another person's obligation with another person's obligation as security, he shall not be subrogated to the creditor against the third person who has acquired the mortgaged property after the repayment of the obligation unless the additional registration of the subrogation is made in advance. Therefore, if the third person acquired the said property while the person who has provided another person's property as security has paid the obligation to the person who has provided another person as security, the person who has subrogated to the third person shall not be subrogated to the creditor against

Article 482 of the Civil Act

Maximum Tax Country

The Republic of Gangwon Sea (Law Firm Gyeong, Counsel for defendant-appellant)

Attorney Lee Jae-chul, Counsel for the plaintiff-appellant

Seoul High Court Decision 89Na34324 delivered on February 20, 1990

The judgment of the court below is reversed.

The case is remanded to Seoul High Court.

We examine the grounds of appeal by the Intervenor succeeding to the plaintiff.

1. The court below held that, in order to secure a loan obligation of 300 million won against the defendant of the non-party corporation, the registration of the establishment of the collateral in the name of the defendant for the real estate of this case entered in the attached list of the judgment below which he owned, the plaintiff transferred the collateral to the non-party corporation to the non-party corporation the obligation of the collateral security right to the non-party corporation to secure the loan obligation of 300 million won, and that, in case the plaintiff acquired the collateral security right to the above non-party's collateral security right to the non-party, the defendant acquired the collateral security right to the non-party's collateral security right to the non-party to the non-party corporation, the collateral security right of this case from December 15, 1987 to March 16, 198, the defendant acquired the collateral security right to each of the above non-party's collateral security right to the non-party's collateral security right to the non-party's collateral security right to the non-party's collateral security right to the plaintiff's obligation of this case was extinguished.

2. However, Article 482 (2) 1 of the Civil Code provides, however, that "the surety shall not subrogate the obligee against a third party who has acquired the right on the leased property or the mortgaged property unless the subrogation has been stated in advance on the registration of the right to lease on a deposit basis or the mortgaged property," and subparagraph 5 provides that "the obligee shall subrogate the obligee in proportion to the number of the persons who have provided the property as security to another person and the surety. However, if there are several persons who have provided the property as security to another person, the obligee shall subrogate the obligee in proportion to the value of each property except the portion borne by the surety. In this case, if there are several persons who have provided the property as security, the provisions of subparagraph 1 shall apply mutatis mutandis to the additional registration of subrogation. The purport of the proviso of subparagraph 5 is that where the surety who provided the property to another person as security is real property, the provisions of subparagraph 1 shall apply mutatis mutandis only to the obligee who has provided the property to secure another person's property as security, and if the surety does not have the provisions of subparagraph 5 shall apply mutatis mutandis to the obligee.

3. In the case of this case, as determined by the court below, if the plaintiff succeeded to the real estate of this case was acquired by the plaintiff while the above non-party paid out the debt of the non-party Eul CPC as a collateral for the debt of the non-party Eul CPC (APC) and did not make a supplementary registration of subrogation as to the registration of creation of a collateral on the real estate of this case which is owned by the plaintiff as another person who has pledged another's property to secure another's property, the above non-party can not subrogate the creditor against the plaintiff succeeding to the plaintiff as the third purchaser. However, the court below held that even if the non-party did not make a supplementary registration of subrogation on the registration of creation of a collateral on the above part of the non-party, the court below did not err in the misapprehension of legal principles as to the subrogation of the plaintiff succeeding to the plaintiff, and it is obvious that such illegality affected the conclusion of the judgment. Thus, there is a ground for appeal pointing this out.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-sung (Presiding Justice)