Whether a person who has pledged his/her property to secure another's right to demand advance reimbursement can be exercised (negative in principle)

Article 341 of the Civil Act applies mutatis mutandis to a mortgage pursuant to Article 370 of the Civil Act. Article 341 of the Civil Act provides that a mortgagee who has created a mortgage to secure another person's obligation shall acquire the right to indemnity against the debtor when he/she has repaid his/her obligation or has lost the ownership of the mortgaged property due to the execution of the mortgage. The requirements for the right to indemnity against the debtor are different from those of the guarantor. The secured security is the act of establishing a security right on behalf of the debtor for the debtor, and the secured security is not entrusted with the work of performing the obligation on behalf of the debtor, and the secured security is the act of establishing a security right on behalf of the debtor. Therefore, the secured security is not a person who has secured a secured obligation, and the scope of the right to indemnity against the debtor is not a person who has secured a secured obligation, unless there are special circumstances, and as a matter of principle, Article 442 of the Civil Act on the prior right to indemnity of the entrusted guarantor cannot be exercised.

Articles 341, 370, and 442 of the Civil Act

Bankruptcy Trustee of ○○ Corporation ○○

Intervenor, Inc.

Defendant 1 Co., Ltd. and one other (Law Firm Gyeong & Yang, Attorneys Kim Yong-ki et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2008Na960, 977 decided January 21, 2009

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

The grounds of appeal are examined.

1. Determination on the grounds of appeal Nos. 1 and 2

Examining the reasoning of the judgment below in light of the records, we affirm the judgment below that the court below held that ○○ Co., Ltd. prior to bankruptcy bears the obligation to purchase and sell shares as stated in the judgment of the non-party 1 Co., Ltd., and rejected the Defendants’ assertion premised on Defendant 2’s joint and several liability by Defendant 2 Co., Ltd., and there is no evidence to recognize that Defendant 2 jointly and severally guaranteed the obligation to the non-party 2 Co., Ltd

2. Judgment on the third ground for appeal

A. As seen earlier, if Defendant 2’s joint and several liability cannot be acknowledged, there is no room to acknowledge the prior right of reimbursement against Defendant 2’s entrusted guarantor. Thus, the lower court is justifiable to have rejected the Defendants’ assertion that Defendant 2’s deposited obligation was extinguished from an equal amount of the purchase price by offsetting Defendant 2’s deposited obligation as a deposit guarantor by an automatic claim for prior reimbursement as a deposit guarantor, and further, the lower court did not have any evidence to acknowledge that the deposited guarantor falls under any of the subparagraphs of Article 442(1) of the Civil Act, which is entitled to exercise the prior right of reimbursement, and thus, does not affect the conclusion of the judgment

B. Article 341 of the Civil Act applies mutatis mutandis to a mortgage pursuant to Article 370 of the same Act. Article 341 of the same Act provides that a mortgage holder who has created a mortgage to secure another person's obligation shall obtain the right to indemnity against the debtor when he/she has repaid his/her obligation or has lost the ownership of the mortgaged property due to the execution of the mortgage, which is different from the case of a guarantor. The real guarantee is an act of establishing a security right on behalf of a person who is not the debtor, and is not entrusted with the performance of the work of performing the obligation on behalf of the debtor. Therefore, the surety is not a person who has secured a security right on behalf of the debtor, and the surety is not a person who has secured a real liability, but is not a person who has secured a security, and the scope of the right to indemnity against the debtor is determined at the time when the property is discharged by the execution of the security right. In principle, it is reasonable to interpret Article 442 of the Civil Act on the right to advance indemnity of the trustee.

Examining the reasoning of the judgment below in light of the records, the court below is just in rejecting the Defendants’ assertion that Defendant 2 may exercise prior right to indemnity against the surety on the ground that the right to indemnity against the obligor of the surety is only caused by the repayment of the obligation by the surety or the loss of ownership of the mortgaged property due to the exercise of the mortgage, and there is no error in the misapprehension of legal principles as to the prior right to indemnity of the surety.

3. Judgment on the fourth ground for appeal

In cases where a real estate on which a mortgage is established is transferred by a fraudulent act, the fraudulent act is established within the scope of the value of the real estate, that is, within the extent of the balance obtained by deducting the secured debt amount of the mortgage in the market price (not consistent with the publicly notified land price), and where the secured debt amount exceeds the value of the real estate, the assignment of the real estate concerned cannot be deemed a fraudulent act. Here, the secured debt amount in this context is not the maximum debt amount in the case of a mortgage, but the amount of the secured debt actually occurred (see, e.g., Supreme Court Decision 200Da42618, Oct. 9, 200). Furthermore, restitution following the cancellation of a fraudulent act shall, in principle, be based on the return of the object itself, and exceptionally compensation shall be based only on cases where it is impossible or considerably difficult (see, e.g., Supreme Court Decision 2006Da43620, Dec.

Examining the reasoning of the judgment below in light of the records, there is no evidence that the secured debt of the right to collateral security established on the land of this case exceeds the market price at the time of the second sale contract of this case, and the court below's determination that the circumstances as stated in the defendants' assertion do not constitute a case where the return of original property is impossible or considerably difficult is just in accordance with the above legal principles

4. 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 on the bench.

Justices Kim Yong-dam (Presiding Justice)