If the mortgagee disposes of the mortgaged real estate at a price lower than the market price for the exercise of security rights, the nature of the tort.

In disposing of the mortgaged real estate for the exercise of security right by the mortgagee, the fact that there is a difference between the market price and the actual disposal price, barring any special circumstances, such as where the difference between the market price and the disposal price is so obvious that it is reasonable to presume the negligence of the mortgagee, cannot be presumed that the intention or negligence of the mortgagee is presumed to have been presumed. Therefore, the secured person must prove the intention or negligence of the mortgagee, which is

Articles 372 and 750 of the Civil Act

Supreme Court Decision 68Da112 Decided March 25, 1969

Plaintiff

Defendant-Appellee (Attorney Kim Yong-sik, Counsel for defendant-appellee)

Seoul High Court Decision 79Na2920 delivered on January 19, 1981

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

1. We examine the second ground for appeal by the defendant's attorney.

(1) The court below found that the plaintiff made provisional registration of the apartment of this case to the defendant as a security of the obligation against the defendant, and had the settlement period prior to the filing of the lawsuit, and the defendant had the settlement period prior to the settlement period as stated in its reasoning, the defendant was responsible for compensating the non-party for damages equivalent to KRW 10,50,000, after making the principal registration based on the above provisional registration and receiving an order from the plaintiff for the exercise of security right, and selling the apartment of this case to the non-party after completing the registration of the transfer of ownership, and completed the registration of the transfer of ownership, and at the pertinent market price of the apartment of this case at the time of the above disposition, was equivalent to KRW 14,195,200, and there is no special circumstance, such as that the plaintiff found more specific market price at the market price at the time of the above disposition, appraisal or other method. In this case, the defendant's execution of the above security right was negligent by selling the apartment at a price lower than the market price.

(2) The act of disposing of the collateral after the due date for payment by the mortgagee is deemed a lawful exercise of the right as it constitutes the exercise of the right. However, if the method of disposal is unfair, for example, in the case of selling the collateral at a price at a price lower than the pertinent market price, it shall be deemed that the secured party's default is not only the secured party (see Supreme Court Decision 80Da2688, May 26, 1981) but also if it is recognized that the secured party either intentionally or negligently sold the collateral at a price lower than the reasonable market price, it shall be deemed that the secured party is liable for tort.

However, in the case of claiming damages due to a tort, not a default, as in the instant case, it seems reasonable to presume the negligence of the secured party because the difference between the market price and the disposal price is too obvious (see the case in this case, e.g., Supreme Court Decision 69Da112, Mar. 25, 1969), barring special circumstances, the fact that there is a difference between the market price and the actual disposal price does not constitute an intentional or negligent act by the secured party. The Plaintiff is liable to prove the intent or negligence of the secured party, which is the constituent element of the tort.

(3) Nevertheless, the court below held that the defendant, at the time of the disposition of the collateral in this case, was negligent, barring special circumstances, such as that the defendant, who was the secured party at the time of the disposition of the collateral, was aware of the pertinent market price through the market price appraisal, etc., and held that the defendant's negligence was presumed to have been presumed to have been committed, and therefore, the court below erred in the misapprehension of

2. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, and on the sum of the above amount of damages and the balance of debt settlement, the entire judgment of the court below is reversed, and the case to be tried again to the Seoul High Court is reversed and remanded to the court below. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Lee Sung-soo (Presiding Justice)