물상보증인 소유의 공동저당 부동산이 채무자에게 양도된 경우 변제자대위의 법률관계 - 대법원 2021. 12. 16. 선고 2021다247258 판결 -

Abstract

(1) Implications of the debtor’s acquisition of title to the property The acquirer of the mortgaged real estate shall inherit the legal status of the former owner. The transferee from the debtor is treated as the debtor, and the transferee from the mortgagee is treated as the mortgagee. In this case, the debtor is the acquirer from the mortgagor and therefore has the same status as the mortgagor. (2) Effect of defendant’s reimbursement Where a joint mortgage is placed on real estate owned by the same guarantor, Article 368 serves as the basis for the division of liability between the properties. The point at which that standard is applied is, in principle, the time of the creation of the joint mortgage. 1) In this case, since both the first and second properties were owned by the mortgagee at the time the joint mortgage was established, each property shares the liability in proportion to its value under Article 368, paragraph 1. 2) Although the second property was transferred to the defendant after the joint mortgage was established, the purchaser from the mortgagee is treated as the mortgagee, and the proportion of each property’s share of the debt remains proportional to the value of the property. 3) The defendant acquires a mortgage on the first and second properties by subrogation, which is limited to the amount of the debt to be shared by each property in the case of simultaneous distribution, i.e., the proportionate share of the value. Here, since the second property is owned by the defendant, the mortgage on the second property is extinguished by confusion. There is a senior mortgage (approximately 160 million won) subrogated by the defendant on the first property and a subordinate Leasehold rights (230 million won) of the plaintiff. 4) The defendant can be subrogated only to the extent of its share of the liability of the first property (approximately 160 million won), and the plaintiff can be reimbursed for the remaining amount. Therefore, the registration of the mortgage in the name of the defendant is invalid to the extent that it exceeds its share of the liability. (3) Applicable provisions If the jointly mortgaged real estate belongs to the same mortgagor, the liability of each real estate shall be apportioned in proportion to the value of the real estate pursuant to Article 368, paragraph 1. If the jointly mortgaged real estate is transferred, the transferee is entitled to subrogation under Articles 481 and 482, paragraph 1, as an acquirer from the mortgagor. In this case, the liability share of each real estate remains the same in proportion to the value of the real estate under Article 368. Article 482, paragraph 2 does not apply because there is no need to establish a new ratio of subrogation. Articles 481 and Article 482, paragraph 1 on statutory subrogation and Article 386 as the basis for the subrogation ratio apply. Also, since the acquirer in Article 482, paragraph 2 No. 3 refers to the acquirer from the debtor, No. 3 does not apply to the acquirer from the mortgagor.