[1] In a case where a creditor has lost or decreased security by intention or negligence, whether a joint guarantor may make a motion for discharge (affirmative)

[2] In a case where the pertinent real estate is seized or provisionally seized by a third party while the principal debtor fails to fulfill an agreement to establish a provisional registration security interest but the creditor fails to take necessary measures to secure the status as a security interest holder, whether the relevant real estate constitutes a case where the creditor loses or reduces the security (affirmative)

[1] The joint and several surety is a person who has a legitimate interest in the repayment of the obligation of the surety and is naturally entitled to statutory subrogation to subrogate the obligee due to the repayment. Thus, in case where the obligee has lost or decreased the security by intention or negligence, barring any other special circumstances, it shall be infringed on the subrogation right of the joint and several surety, and the joint and several surety may demand the discharge to the extent that it cannot be repaid due to its loss or reduction pursuant to Article 485 of the Civil Code.

[2] Even if the principal obligor agreed to set a provisional registration security right to the creditor and fails to perform it, but the obligee does not take measures to preserve, enforce, and execute the status as a security holder, such as an application for provisional registration or a request for performance of registration of establishment of provisional registration, based on the agreement, the case where the security is lost or diminished even if a third party did not secure the right as a security holder of provisional registration by seizure or provisional seizure of the

[1] Article 485 of the Civil Code / [2] Article 485 of the Civil Code

[1] Supreme Court Decision 96Da35774 delivered on December 6, 1996 (Gong1997Sang, 1999) Supreme Court Decision 97Da1013 delivered on January 21, 200 (Gong2000Sang, 451)

Plaintiff

Defendant

Gwangju District Court Decision 2009Na3179 Decided July 10, 2009

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

We examine the grounds of appeal.

A joint and several surety is a person who has a legitimate interest in the repayment of the obligation of the surety and has a statutory subrogation right to subrogate the obligee naturally due to the repayment. Thus, in case where a creditor has lost or decreased the security by intention or negligence, barring any other special circumstances, the joint and several surety shall be deemed to infringe on the subrogation right of the joint and several surety, and the joint and several surety may claim the discharge from liability to the extent that it is not able to be repaid due to its loss or reduction pursuant to Article 485 of the Civil Act (see Supreme Court Decision 97Da1013, Jan. 21, 200). (See Supreme Court Decision 97Da1013, Jan. 21, 2000). Even if the principal obligor agreed to set a provisional security right to the obligee and did not perform it, even if the obligee did not take measures to preserve, enforce and execute the status as a security right, such as an application for provisional disposition, request for the registration of establishment of provisional registration, etc.

The court below acknowledged the facts as stated in its reasoning based on the evidence of employment, and determined that the plaintiff's registration of provisional attachment was completed due to the failure to take necessary measures to secure the status as a security holder of provisional registration pursuant to the provisional registration security agreement established before the defendant's joint and several liability agreement with the principal debtor after the expiration of the due date in the situation where the principal debtor, who is the guarantor, fails to comply with the request for the implementation of the procedures for registration of establishment of provisional registration.

Examining the records in light of the above legal principles, although there are some inappropriate points for the expressions in the judgment of the court below, the conclusion of rejecting the plaintiff's claim against the defendant who is a joint and several surety on the ground that the court below's above fact-finding and the plaintiff's duty to preserve the security was violated is justifiable, and there is no violation of the rules of evidence, misapprehension of legal principles as to the interpretation of disposition documents, obligation to preserve security, etc., or any violation of the rules

Therefore, the appeal is 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 Jeon Soo-ahn (Presiding Justice)