In cases where a person who has pledged his/her property to secure another's property has repaid his/her obligation or has lost his/her ownership due to the exercise of the security right, the extent that the obligee may subrogate the obligee with respect to a third party who has acquired the mortgaged property from the obligor (i.e., the total amount withdrawn within the scope of the right to indemnity), and in cases where a third party who has acquired the mortgaged real property from the obligor has repaid his/her obligation or lost his/

Article 481 of the Civil Act provides that "any person who has a legitimate interest in payment shall, as a matter of course, subrogate an obligee by payment." Article 482 (1) of the Civil Act provides that "a person who has subrogated to an obligee under the preceding two Articles may exercise his/her right to claims and the right to collateral to the extent that he/she may demand reimbursement by his/her own right," and Article 482 (2) of the Civil Act provides that "the exercise of his/her right under the preceding paragraph shall be governed by the provisions of each of the following subparagraphs." However, there is no clear provision regarding subrogation between a surety who has pledged

With respect to subrogation between the guarantor and the third acquisitor, Article 482(2)1 of the Civil Act provides, “The surety shall not subrogate the obligee against the third party who has acquired the right on the subject matter or the mortgaged unless the subrogation is stated in the registration of the right to lease on a deposit basis or the mortgage in advance.” Meanwhile, Article 370 and Article 341 of the Civil Act provides, “the third party acquisitor shall not subrogate the obligee against the surety.” Meanwhile, in cases where the surety performs the obligation or loses its ownership due to the exercise of the right to collateral, the surety shall have the right to indemnity against the obligor pursuant to the provisions on the "liability." According to Article 482(2)5 of the Civil Act, between the surety and the surety, the obligee shall be subrogated in proportion to the number of persons who have pledged his/her property on a deposit basis and between them are not recognized.”

In full view of the above provisions, when a person who has pledged his/her property to secure another's property has repaid his/her obligation or has lost his/her ownership due to the exercise of the security right, he/she may subrogate the obligee with respect to the whole amount recovered within the scope of the right of indemnity against a third party who has acquired the secured property from the debtor, as well as the guarantor who has performed the guaranteed obligation. On the other hand, a third party who has acquired the secured real property from the debtor cannot subrogate the obligee with respect to the secured real property even if he/she has lost his/her ownership due to the repayment of obligation or the exercise of the security right. If a third party who has acquired the secured real property from the debtor can subrogate the obligee in proportion to the value of each real estate, unlike the status of the surety, in view of the status of the surety, the surety who has pledged his/her property to secure another person's property and the third party who has acquired the secured real property from the debtor can be subrogated to a third party in proportion to the value of each real property.

Articles 341, 370, 481, 482(1), 482(2)1, 2, and 5 of the Civil Act

Supreme Court Decision 74Da1419 delivered on December 10, 1974 (Gong1975, 8218) (Change)

Plaintiff 1 and two others (Attorney Kim Jong-woo, Counsel for the plaintiff-appellant)

Defendant (Attorney Kang Jae-won, Counsel for defendant-appellant)

Jeju District Court Decision 2010Na2497 decided May 25, 2011

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

The court below determined that the evidence presented by the plaintiffs alone is insufficient to recognize that the defendant was a de facto debtor of the loan of this case or that the non-party repaid the loan of this case, and that the defendant paid the loan of this case by subrogation to the non-party as the debtor.

In light of the relevant legal principles and records, such judgment of the court below is just, and there is no error of exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or of misapprehending the legal principles on the right of indemnity

2. As to the grounds of appeal Nos. 3 and 4

Article 481 of the Civil Act provides that "any person who has a legitimate interest in payment shall, as a matter of course, subrogate an obligee by payment." Article 482 (1) of the Civil Act provides that "a person who has subrogated to an obligee under the preceding two Articles may exercise his/her right to claims and the right to collateral to the extent that he/she may demand reimbursement by his/her own right," and Article 482 (2) of the Civil Act provides that "the exercise of his/her right under the preceding paragraph shall be governed by the provisions of each of the following subparagraphs." However, there is no clear provision regarding subrogation between a surety to secure another'

However, with respect to subrogation between the guarantor and the third acquisitor, Article 482(2)1 of the Civil Act provides, “The surety shall not subrogate the obligee against the third party who has acquired the right on the leasehold property or the mortgaged property unless the surety has made an additional entry on the registration of the surety property or the mortgaged property in advance.” Meanwhile, Article 370 and Article 341 of the Civil Act provides, “the third party acquisitor shall not subrogate the obligee against the surety.” Meanwhile, in cases where the surety performs the obligation or loses its ownership through the exercise of the security right, the surety shall have the right to indemnity against the obligor pursuant to the provisions on “guarantee.” According to Article 482(2)5 of the Civil Act, between the surety and the surety, the surety are subrogated in proportion to the number of persons who have acquired the surety property, on the other hand, the surety shall not be deemed to have acquired the entire obligation from the obligee within the scope of the obligee who has acquired the right to indemnity against the third party real property, even if the surety has performed the obligation in proportion to the value of the surety property.

In contrast, the Supreme Court Decision 74Da1419 delivered on December 10, 1974, which held that the third acquisitor who purchased the mortgaged real estate can subrogate the creditor in proportion to the value of each real estate to the surety's property, shall be changed to the extent that it is inconsistent with the opinion of this Court.

For reasons indicated in its holding, the lower court determined that, insofar as the Defendant, a surety, repaid the Defendant’s debt of the instant loan, the Defendant could exercise the right to collateral security in subrogation against the Plaintiffs who acquired the instant over-water share from the Nonparty, for which the instant right to collateral security was established, within the full amount distributed by the Defendant, and dismissed the Plaintiffs’ claim to cancel the registration of collateral security in this case.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the right of indemnity and subrogation.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Young-chul (Presiding Justice)