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TITLE Supreme Court en banc Decision 2018Da879 Decided May 21, 2020 ¡¼Partition of Jointly Owned Property¡½ [full Text]
Summary
[1] Whether the right to request a partition of jointly owned property can be the purpose of an obligee¡¯s right of subrogation (affirmative)
[2] Standards for determining whether there is a ¡°need for preservation,¡± which is a prerequisite for the exercise of an obligee¡¯s right of subrogation
[3] Whether an obligee having a monetary 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-ownership interest jointly secures a floating sum mortgage together with co-ownership interests of other co-owners; (b) the claim secured by the said floating sum mortgage exceeds the value of the obligor¡¯s co-ownership interest, meaning that there will be nothing left in the event where only the obligor¡¯s co-ownership interest 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 in the manner of partition of joint property, the proceeds of the auction sale of the obligor¡¯s co-ownership interest is likely to remain after deducting his share of the amount of the claim secured by the floating sum mortgage therefrom, as the claim jointly secured by the floating sum mortgage will be divided in proportion to the proceeds of the auction of each of the co-ownership interest pursuant to Article 368(1) of the Civil Act (affirmative)
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