1990.12.18

1990 (O) 801

Minshu Vol. 44, No. 9

Judgment concerning a third person mortgagor and whether or not the right to reimbursement may be exercised in advance

Case seeking reimbursement

Judgment of the Third Petty Bench, dismissed

Osaka High Court, Judgment of February 28, 1990

Even if the due date of a secured claim has arrived, a third person mortgagor may not exercise the right to reimbursement in advance.

Articles 351, 372 and 460 of the Civil Code



Civil Code

(Third Party Pledgors' Rights to Obtain Reimbursement)

Articles 351 If persons who created pledges to secure the obligations of others have performed those obligations or have lost ownership of the Thing pledged due to the execution of the pledges, they shall have the right to obtain reimbursement from the obligors in accordance with the provisions regarding guarantee obligations.



(Mutatis Mutandis Application of Provisions on Right of Retention)

Articles 372 The provisions of Article 296, Article 304 and Article 351 shall apply mutatis mutandis to mortgages.



(Entrusted Guarantor's Right to Obtain Reimbursement in Advance)

Article 460 In cases where a guarantor has given a guarantee as entrusted by the principal obligor, the guarantor may exercise in advance his/her right to obtain reimbursement vis-a-vis the principal obligor if:

(i) the principal obligor is subject to a ruling for the commencement of bankruptcy procedures, and the obligee does not participate in the distribution of the bankruptcy estate;

(ii) the obligation is due; provided, however, that, no extension of time granted by the obligee to the principal obligor after the conclusion of the contract of guarantee may be raised as a defense vis-a-vis the guarantor; and

(iii) ten years have elapsed after the conclusion of the contract of guarantee in the cases where the time for performing the obligation is uncertain and even its maximum duration cannot be ascertained.

The final appeal is dismissed.

The costs of the final appeal shall be borne by the appellant of final appeal.

Reasons for a final appeal stated by the counsel for final appeal, MATSUOKA Shigeo

It is appropriate to interpret that a person who has created a mortgage to secure the obligations of the obligor based on entrustment from such obligor (a third person mortgagor) may not exercise the right to reimbursement against the obligor in advance even if the due date of the secured claim has arrived. This is based on the following reasons: since the provision of Article 351 of the Civil Code is applied mutatis mutandis to a mortgage pursuant to Article 372 of that Code, if the abovementioned obligation has extinguished as a result of the performance of the obligation or execution of mortgage by the third person mortgagor, the third person mortgagor acquires the right to reimbursement against the obligor and the provision concerning guarantee obligation is applied mutatis mutandis to the scope of the reimbursement. However, the abovementioned provision does not serve as the basis for allowing the third person mortgagor to exercise the right to reimbursement against the obligor in advance, and there are no other provisions that may serve as the basis to allow such exercise.

It can be said that the provision of Article 351 of the Civil Code as applied mutatis mutandis to mortgage pursuant to the provision of Article 372 of that Code shows that the legal relationship between the third person mortgagor and obligor in the case where the secured claim has extinguished as a result of contribution by the third person mortgagor is similar to the legal relationship between the guarantor and principal obligor in the case where the principal obligation has extinguished as a result of performance by the guarantor. Entrustment of a guarantee refers to the principal obligor's act of entrusting to the trustee the conclusion of an agreement between the trustee and obligee stipulating that when the principal obligor fails to perform an obligation, the trustee is to be responsible to perform the obligation. Thus, when a trustee provides a guarantee based on the abovementioned entrustment, the trustee him/herself will bear the guarantee obligation and it can be said that the performance of the guarantee obligation is a burden that arises in processing administrative affairs related to the abovementioned entrustment. In contrast, entrustment of real guarantee is only an entrustment of the act to create real rights and is not an entrustment of the act to bear obligation. And thus, even if a trustee created a mortgage based on the abovementioned entrustment, the trustee only bears responsibility to the extent of the value of the mortgaged immovable property and the extinction of the secured claim by the sales proceeds of the mortgaged immovable property and the scope thereof are determined by the distribution of the sales proceeds of the mortgaged immovable property, etc. Thus, the scope of the right to reimbursement as well as the existence thereof cannot be determined in advance and the extinction of the secured claim by the distribution of the sales proceeds of the mortgaged immovable property, etc. or performance of the secured claim by the trustee cannot be interpreted as the processing of the entrusted affairs. Accordingly, even if similarity can be found in the reimbursement relationship after the obligation has extinguished due to the third person mortgagor's contribution, the provision of Article 460 of the Civil Code concerning the entrusted guarantor's right to obtain reimbursement in advance cannot be applied by analogy to the entrusted third person mortgagor while disregarding the differences explained above.

As such, the determination made by the court of prior instance which dismissed the appellant's claims based on the same viewpoints as those described above is legitimate and can be accepted and the arguments are not acceptable.

Accordingly, in accordance with Articles 401, 95 and 89 of the Code of Civil Procedure, the Court unanimously decides as set forth in the main text.

Justice SONOBE Itsuo

Justice SAKAUE Toshio

Justice SATO Shoichiro

Justice KABE Tsuneo