Whether a loan claim that occurred after a request for auction based on a right to collateral security is included in the secured claim (negative)

When a mortgagee has filed a request for auction on the grounds of his non-performance of the secured obligation, the right to collateral security shall be fixed at the time of such request for auction, and the principal claim accrued thereafter shall not be secured by such right.

Article 357 of the Civil Act

Supreme Court Decision 87Meu545 Delivered on October 11, 1988

[Judgment of the court below]

Choung Bank Co., Ltd., Counsel for the plaintiff-appellee and one other

Busan High Court Decision 87Na377 delivered on May 11, 1989

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

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below concluded a contract to establish a mortgage between the above non-party 1 and the non-party 2 on April 1, 1981, which provides the above real estate as collateral for the performance of all the obligations arising from the transaction, including the present or future guaranteed debts, and completed the establishment registration of mortgage amounting to 60,000 won on the 10th of that month, as the above non-party 1 did not repay the principal and interest of 16,07,06 won, the court below decided that the above non-party 1 would not claim the above provisional auction against the non-party 1 on the 0th of that year after it decided that the non-party 1 would not claim the above provisional auction against the non-party 1 on the 198th of that year, and that the above non-party 1 would not claim the above 10th of that year to the non-party 2's loan out of 10th of that year.

However, when the mortgagee filed an application for auction on the ground of the non-performance of the secured obligation, the right to collateral security becomes final and conclusive at the time of the application for auction, and the principal claim arising after the establishment of the right to collateral security is not secured by the right to collateral security (Law No. 545, Oct. 11, 198).

According to the facts established by the court below, the defendant bank, which is the right to collateral security of this case, filed an application for voluntary auction on January 23, 1984 on the ground of the non-performance of the secured obligation, and the decision to commence the auction was made, and the defendant was clear that he lent 20,000,000 won to the non-party 3 on June 9, 1984 after the above request for auction was filed. Thus, the defendant's claim to return the loan to the non-party 3 cannot be included in the secured claim of the above right to collateral security which

The court below's rejection of the plaintiff's assertion on the ground that only the defendant bank filed a request for auction cannot be deemed as a final and conclusive mortgage on the contrary is an error of law by misunderstanding the scope of the secured debt of the right to collateral security.

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

Justices Song Man-man (Presiding Justice)