서로 다른 소유의 공동저당 부동산 중 일부가 양도되어 소유자가 같게 된 경우 후순위저당권자의 대위와 변제자대위의 관계

Abstract

According to a precedent, Article 368 of the Civil Act applies when all of jointly mortgaged real estate is owned by an obligor or one and same surety on property, while Articles 481 and 482 apply when a part of jointly mortgaged real estate is owned by a surety on property, with the subrogation by a person who has performed obligation prevailing. However, the Supreme Court’s ruling No. 2021da247258 (December 26, 2021) stated that the subrogation by a surety on property and performed obligation is validated to the extent that it does not affect the status of mortgagee next in priority when jointly mortgaged real estate is owned by one and same surety on property and a subordinated mortgage of a part of the real estate is set up and then it is transferred to a third party so the real estate is owned by different persons. This follows the prevailing of the subrogation by a first registered person. On the other hand, what if subordinated mortgages are established on a part or both parts of jointly mortgaged real estate owned by different persons and then it is transferred to an obligor, a surety on property, or a third party so that the real estate is owned by one and same person? According to the prevailing of the subrogation by a person who has performed obligation, the subrogation by a surety on property and performed obligation should be established in order for the mortgagee next in priority to subrogate to the rights of the mortgagee first in priority when the real estate owned by a surety on property has been sold first by auction or allotted. To that end, the surety on property should have the right to demand indemnity to the obligor. However, if a surety on property takes over a mortgage when taking assignment of the real estate owned by the obligor or if a third-party acquisitor does not take over a mortgage when taking assignment of the real estate owned by a surety on property, the surety on property may not acquire the right to demand indemnity to the obligor, even if the real estate owned by the surety on property is sold by auction first. As a result, there is a problem of the mortgagee next in priority’s being unable to subrogate to the rights of the mortgagee first in priority. The legal status of the mortgagee next in priority should not be affected by the accidental event of a transfer of mortgage, and it is undesirable in terms of legal interpretation to recognize an exception again after recognizing an exception to the application of Article 368 of the Civil Act. Consequently, Article 368 of the Civil Act should apply when a jointly mortgaged real estate owned by different persons is transferred and as a result, the real estate is owned by one and same person.