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1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
3. Disposition of the first instance judgment is set forth in paragraph (3).
Reasons
1. Basic facts
A. The Plaintiff entered into a credit guarantee agreement with A on November 9, 202 with the content that, in the event that the Plaintiff guarantees the performance of a loan obligation of A and pays it by subrogation, the Plaintiff shall claim for all kinds of incidental obligations, such as the amount of subrogation and the amount of delay damages, and the credit guarantee term for the credit guarantee principal up to the period of November 9, 2021, and issued a credit guarantee certificate on November 9, 201.
B. A submitted and loaned a credit guarantee certificate to Nonparty C Co., Ltd. (hereinafter “C”), but on February 10, 2018, a guarantee accident (hereinafter “A’s guarantee accident”) occurred.
Accordingly, the Plaintiff paid KRW 29,200 on May 25, 2018 to C, and collected KRW 349,20 on the same day, and the Plaintiff’s subrogated payment due to a guarantee accident by A constituted KRW 28,670,697 [the principal amount = KRW 28,670,602 (the principal amount - KRW 29,019,802 - 349,200)].
The rate of damages for delay under the credit guarantee agreement between the plaintiff and A around the date of payment by subrogation is 10% per annum.
C. Meanwhile, on November 15, 2017, prior to the occurrence of a guarantee accident, A entered into a sales contract with the Defendant, one’s mother, with respect to the real estate stated in the separate sheet (hereinafter “instant real estate”) with the purchase price of KRW 190 million (hereinafter “instant sales contract”).
However, in lieu of the payment of the purchase price, A and the defendant agreed to accept the secured debt of the right to collateral security established on the real estate of this case.
The defendant completed the registration of ownership transfer on December 15, 2017.
At the time of the instant sales contract, the first priority collective security was established with respect to the instant real estate, namely, the mortgagee, and the maximum debt amount of which are KRW 157,200,000. However, the Defendant was the mortgagee on December 15, 2017.