공동근저당권자가 채무자에 대한 회생절차에서 채무자 소유 부동산의 환가대금으로부터 우선변제받은 경우에 공동담보물인 물상보증인 소유의 다른 목적 부동산의 채권최고액 감액 여부

The key issue of the subject case is, where a joint mortgagee who has priority over other rights-holders is partly apportioned a secured debt out of the proceeds derived from realizing one of the immovable properties provided as joint collateral through either the (i) enforcement of a mortgage by the mortgagee’s own effort or (ii) commencement by another party of the auction, sale, acceptance or rehabilitation procedure (hereinafter “realization procedure”), whether said joint mortgagee may exercise a right to preferential reimbursement within the scope of the initial maximum debt amount regarding the remainder of secured debt. Inasmuch as Article 368 of the Civil Act is applicable toward a joint mortgage, if simultaneous apportionment takes place with regard to immovable properties provided as joint collateral, the secured debt shall be divided within the scope of the maximum debt amount and apportioned to a joint mortgagee in proportion to the proceeds from the realization of each immovable property, and shall not be apportioned cumulatively equal to the maximum debt amount. That said, even in a case where a sequential apportionment takes place with regard to immovable properties provided as joint collateral, construing that it is impossible to cumulatively apportion from the proceeds of realizing each immovable property accords with the purport of Article 368 thereof. In contrast to the above, if that same joint mortgagee is deemed able to exercise again the right to preferential reimbursement against the remainder of immovable properties jointly mortgaged within the extent of the initial maximum debt amount, namely, without deducting the amount preferentially reimbursed, this deprives a person who has acquired a subordinate mortgage on an immovable property in which a senior mortgage is already established, or a guarantor in rem who owns an immovable property that is jointly mortgaged, the opportunity to reap benefits from simultaneous apportionment. The Supreme Court had previously ruled that a joint mortgagee could again exercise the right of preferential reimbursement during the realization procedure of the remaining immovable properties (see Supreme Court Decision 2008Da72318, Dec. 10, 2009). In the subject case, the Court overruled such precedent by holding as follows: (a) a joint mortgage cannot re-exercise the right to preferential reimbursement as to the amount preferentially reimbursed during the realization of the remaining immovable properties jointly collateralized; (b) the scope of right to preferential reimbursement that is exercisable by a joint mortgagee against the remainder of immovable properties provided as joint collateral ought to be construed as limited to the outstanding maximum debt amount after deducting the preferentially reimbursed amount from the initial maximum debt amount, regardless of the settlement of the secured debt; and (c) such legal doctrine holds true in cases where the secured debt that exceeds the maximum debt amount is not the principal but, rather, the interest and delay damages.