누적적 근저당과 물상보증인의 변제자대위 인정여부 - 대법원 2020.4.9. 선고 2014다51756,51763 판결 -

In the case that a mortgage has ben created on multiple immovables in order tosecure the same claim arisng from one basic contract betwen the parties and it has benset in the form of an individual mortgage instead of a joint mortgage for the preferentialpayment of the sum of the maximum amounts of the debts secured by each mortgage,this mortgage can be considered a type of a joint mortgage since the registration of ajoint mortgage canot be enforced in any way in acordance with the Registration of RealEstate Act, and each mortgage was created for the purpose of securing the same claim. The judgements by the Supreme Court on April 9, 2020 (No. 2014Da51756 and 51763)are signifcant in that they are the first to explicitly recognize a cumulative mortgage byregarding this mortgage as one that guarantes the secured claim in a cumulative way,distinguishing it from a joint mortgage. Acording to the judgements, Article 368 of theCivil Act does not aply to the execution of a cumulative mortgage right and unlike ajoint mortgage, a cumulative mortgage does not secure the redundant claims. Thecreditor thus can execute his mortgage right to satisfy his claim in preference within themaximum amount of the debt secured by each mortgage. Since a cumulative mortgage is registered in the form of an individual mortgage, the mortgage next in priorityregarding the real estate owned by the debtor can hold a mortgage by identifying theremaining amount after subtracting the maximum amount of the debt secured by themortgage first in priority from the exchange value of the real estate as the colateralvalue. Therefore, in the case of alocation at other times, even if Paragraph 2, Article 368of the Civil Act does not aply, this canot be sen as violating the trust of themortgage next in priority; for this reason, the logic of the above judgments is justifable. However, in the case that the amount of the secured debt does not amount to the sumof the maximum amount secured by each mortgage, or if each mortgage has a diferentscope of guarante, it is reasonable to analogicaly aply Paragraph 1, Article 368 of theCivil Act when alocating the real estates on which each mortgage has ben created atthe same time by determining the share of each mortgage in proportion to the auctionprice of each real estate. This is because even if Paragraph 1, Article 368 is analogicalyaplied, the ful amount of the secured debt can be alocated to each mortgage, andthis does not cause any disadvantages to the mortgages. Therefore, when al colateralon which a cumulative mortgage is set is put up at auction and the auction price isalocated at the same time, fairnes betwen the mortgages next in priority must bepursued. Therefore, the logic of the above rulings that Article 368 does not aply to acumulative mortgage should be aplied only to alocation at other times.