동일한 물상보증인 소유 부동산에 대한 공동저당 - 대법원 2015. 3. 20. 선고 2012다99341 판결 -

Abstract

In the Case which all the Objects of the joint mortgage belong to the same material Guarantor and only the Real Estate with the subordinated mortgage is auctioned first and allocated, the Korean Supreme Court(KSC) - 2012da99341 - approached the issue of Subrogation of the Mortgagee next in Priority, not Subrogation by a Person who has performed Obligation. The KSC Judgment is valid in that the material Guarantor does not expect the Security Capacity of the Debtor's Property. In addition, it is difficult to assume that a material Guarantor will exercise a Surrogation Right on his or her own Real Estate, and Article 482 (2) 4 of Korean Civil Code(KCC) – which is premised on ʻʻseveral people who have provided their property as collateral for the Debts of Othersʼʼ - is also not appropriate to apply. On the other hand, if the Requirements of the Subrogation of the Mortgagee next in Priority are met, the subordinated mortgage holders acquire the Mortgage of the Senior Joint Mortgage without Registration. KSC presupposes that the Need to protect Third-Party Acquirers also exists in the Case of Subrogation of the Mortgagee next in Priority, and divided the cases and judged as follows. In the Case of the Mortgage Registration has not been canceled after Subrogation of the Mortgagee next in Priority, Subordinated mortgage holder can also claim Surrogation Right to Third Party Purchaser without Registering. Conversely, if the Mortgage Registration is canceled while the subordinated Mortgage is not registered, the subordinated Mortgagee cannot claim the Right of Surrogation to Third Party Purchaser. KSC Judgment has a logical Structure of analogical Application of the subrogated Registration in KCC Article 482 (2) 1 and 5 to the Case of Subrogation of the Mortgagee next in Priority. However, the Conclusion of the Ruling is not natural to see as a Result of Analogy. Under the current Legislation, which does not recognize the public trust of Registration, a Theory that does not require Registration is valid.