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TITLE 【Syllabus of Latest Opinion】 Supreme Court en banc Decision 2018Da879 decided May 21, 2020 【Partition of Jointly Owned Property】 [full Text]
Summary
[1] Whether the right to request a partition of jointly owned property may be the purpose of an obligee’s right of subrogation (affirmative)
[2] Standards for determining whether there is the “need for preservation,” which is a prerequisite for the exercise of an obligee’s right of subrogation
[3] Whether an obligee having a money claim may exercise the right of subrogation to request a partition of jointly owned property in relation to an obligor’s real estate property in order to preserve the said obligee’s claim (negative in principle), and whether this likewise applies to a case where: (a) the obligor’s co-owned share jointly secures a floating sum mortgage together with co-owned shares of other co-owners; (b) the said floating sum mortgage’s secured claim exceeds the value of the obligor’s co-owned share, meaning that there will be nothing left in the event where only the obligor’s co-owned share is put up for sale by auction, and, accordingly, the auction is likely to be cancelled pursuant to Article 102 of the Civil Procedure Act; (c) conversely, if the entirety of the jointly owned real estate property is sold through an auction sale, the proceeds of the auction sale of the obligor’s co-owned share would remain after deducting the repayment of his share of the secured claim of the floating sum mortgage, as the secured claim of the jointly held floating sum mortgage will be divided in proportion to the proceeds of the auction of each of the co-owned share pursuant to Article 368(1) of the Civil Act (affirmative)
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