물상보증인과 제3취득자 간의 변제자대위- 대법원 2014. 12. 18. 선고 2011다50233 전원합의체 판결 -

Abstract

There isn’t an express stipulation on the Subrogation between the guarantor of secured mortgage and third party purchaser. Recently the Supreme Court did state that, “When the guarantor of secured mortgage repay debt or lose ownership on account of execution of security right, he or she can subrogate creditor full amount on within the limit of reimbursement. On the contrary to this, although third party purchaser acquired rights from debtor repay debt or lose ownership on account of execution of security right, he or she can’t subrogate creditor.”The Supreme Court decision as above appropriates. As it isn’t necessary for guarantor to do additional registration in order to subrogate to third party purchaser acquired rights from debtor, the guarantor of secured mortgage need not to do likewise, although it was not discussed. Eventually the concept of guarantor under Item 1 of Para. 2 of Art. 482 of the Civil Law includes the guarantor of secured mortgage, but the concept of third party purchaser doesn’t include third party purchaser acquired rights from debtor. However the concept of third party purchaser includes third party purchaser acquired rights from guarantor of secured mortgage. In reference to the subrogation of third party purchaser, third party purchaser acquired rights from debtor can’t subrogate creditor to the guarantor or the guarantor of secured mortgage, party purchaser acquired rights from the guarantor of secured mortgage can subrogate creditor to the guarantor or different the guarantor of secured mortgage. Therefore the concept of guarantor under Item 2 of Para. 2 of Art. 482 of the Civil Law includes the guarantor of secured mortgage, but the concept of third party purchaser includes third party purchaser acquired rights from debtor and dosen’t include third party purchaser acquired rights from guarantor of secured mortgage.