[배당이의][집50(2)민,362;공2003.2.1.(171),351]
[1] Whether the latter part of Article 368(2) of the Civil Act may apply mutatis mutandis to a mortgagee in cases where part of a number of real estate owned by the employer was sold first and the senior wage creditors received preferential payment from such auction proceeds and the mortgagee was at a disadvantage than where a claim for wages is distributed simultaneously (affirmative)
[2] In a case where a mortgagee who subrogated to a wage creditor fails to demand a distribution at an auction procedure until the date of a successful bid, whether a wage creditor may receive a distribution within the limit of the amount of the claim for provisional seizure (affirmative)
[3] The method of calculating the dividend in case where the mortgagee of the auction real estate is paid out of the number of real estate owned by the employer in full, and the mortgagee of the auction real estate is paid out of the auction proceeds of other real estate
[4] Whether a successor's participation in a lawsuit in a court of final appeal, which is a legal trial, is allowed (negative)
[1] The so-called statutory security right is the right of preference to claims secured by mortgage, tax, etc. on the whole property of the employer, and if part of the number of real estate owned by the employer is sold first and the wage creditors have been given preferential payment from the auction proceeds, and as a result, the mortgagee at the auction proceeds received any disadvantage than the simultaneous distribution of wage claims from the above number of real estate in accordance with Article 368(1) of the Civil Act, the latter part of Article 368(2) of the Civil Act shall apply mutatis mutandis, and if the wage creditors have received the same dividends from the above number of real estate at the same time, the mortgagee who received the disadvantage as above may receive a preferential payment from the auction proceeds of other real estate in subrogation of the wage creditors who received the payment from the above number of
[2] The mortgagee who subrogated the wage creditor may receive the distribution only in cases where he/she makes a demand for distribution by the successful bid date under Article 605 (1) which applies mutatis mutandis to the auction procedure to exercise the security right under Article 728 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002). However, the creditor who seized the real estate which is the object of the auction before the commencement of the auction procedure shall be treated as having made a demand for distribution even if he/she does not demand a distribution. Thus, in cases where the wage creditor who seized the real estate owned by the employer receives a preferential repayment according to the preferential right at the auction procedure of other real estate and receives a distribution by subrogation of the wage creditor at the auction procedure of the real estate which is provisionally seized by the wage creditor, even if he/she did not make a demand for distribution by the auction date, it shall be deemed that the wage creditor may participate in the distribution by subrogation even if he/she did not make a demand for distribution by the auction date.
[3] If an auction proceeds of some of the several immovables owned by the employer who has the lien on wage claims is repaid in full, and the mortgagee of the auction real estate exercises the lien on wage claims by subrogation of the wage obligee for the auction proceeds of other immovables in accordance with the latter part of Article 368(2) of the Civil Code by analogy, the mortgagee may exercise the lien on wage claims in subrogation of the wage obligee. If the auction proceeds of several immovables owned by the employer are distributed at the same time, only the amount obtained by dividing the amount which was not distributed to the wage obligee by the ratio of the share of wage claims to be distributed to the wage obligee in proportion to the auction proceeds of
[4] The successor's participation in the court of final appeal is not allowed in the court of final appeal.
[1] Article 368 of the Civil Act, Article 37 of the Labor Standards Act / [2] Article 37 of the Labor Standards Act, Article 368 of the Civil Act, Article 605 (1) (see current Article 88 of the Civil Execution Act) and Article 728 (see current Article 268 of the Civil Execution Act) of the former Civil Procedure Act / [3] Article 368 of the Civil Act / [4] Article 81 of the Civil Procedure Act
[1] Supreme Court Decision 94Da21160 delivered on February 23, 1996 (Gong1996Sang, 1031), Supreme Court Decision 97Da9352 delivered on December 22, 1998 (Gong1999Sang, 183), Supreme Court Decision 2000Da32475 delivered on September 29, 200 (Gong2000Sang, 2216)// [2] Supreme Court Decision 94Da5718 delivered on July 28, 1995 (Gong195Ha, 2971), Supreme Court Decision 200Da32475 delivered on September 29, 200 (Gong200Ha, 22216), Supreme Court Decision 209Da32979 delivered on September 29, 209, Supreme Court Decision 209Da329798 delivered on April 29, 197
Dongyang Card Co., Ltd.
Dongyang Social Co. Ltd.
Korea Housing and Commercial Bank Co., Ltd., Ltd.
Daejeon High Court Decision 2002Na43 delivered on July 19, 2002
All appeals and appeals are dismissed. The costs of appeal are assessed against the defendant and the costs of appeal are assessed against the plaintiff, and the costs of appeal are assessed against the plaintiff. The costs of appeal are assessed against the plaintiff's succeeding intervenor.
1. The facts acknowledged by the court below are as follows.
A. The wage creditors of this case, who are workers of the Youngjin Construction Industry Co., Ltd. (hereinafter referred to as the “Yjin Construction”), applied for a compulsory auction of commercial buildings and their sites located in Seo-gu, Seo-gu, Daejeon Construction Co., Ltd. (hereinafter referred to as the “Yjin Construction”), in order to receive the said wages and retirement allowances. In the distribution procedure, the wage creditors of this case, who have the right to wage claims, received a dividend of at least KRW 600 million in the first priority order, and the Plaintiff, the third priority mortgagee of the maximum debt amount of KRW 65 billion, was paid a dividend of at least KRW
B. The Defendant filed an auction to exercise the right to collateral as the first collateral security holder of the instant real estate owned by Yeongdeungpojin Construction and started the auction procedure. However, the wage creditors of the instant case seized the instant real estate prior to the commencement of the auction procedure by having the right to preserve the wage claim amounting to KRW 2.2 billion as the preserved right. In the auction procedure, the Plaintiff issued a demand for distribution of KRW 200 million on behalf of the wage creditors of the instant case on the day immediately before the date of distribution, in lieu of the wage creditors of the instant case on the day immediately before the date of distribution in the auction procedure. However, the auction court distributed to the Defendant the entire remaining amount after first
C. Accordingly, the Plaintiff raised an objection to the amount of the Plaintiff’s demand for distribution among the dividend amount against the Defendant, and filed a lawsuit of demurrer against the distribution of the instant case.
2. Judgment on the grounds of appeal
The right of priority on wage claims is so-called legal security right which can be paid preferentially to claims secured by mortgages, taxes, etc. on the whole property of the employer, and where part of the number of real estate owned by the employer has been sold first and the wage creditors have been preferentially paid out of such auction proceeds under Article 368(1) of the Civil Act, if the mortgagee of the auction proceeds has been disadvantaged than the simultaneous distribution of wage claims from the above number of real estate under Article 368(2) of the Civil Act, the latter part of paragraph (2) of the same Article shall apply mutatis mutandis, and if the wage creditors have been concurrently apportioned from the above number of real estate, the mortgagee who has been disadvantaged may be paid dividends preferentially to other real estate in the auction procedure by subrogation to the extent of the amount which would have been able to be paid out from the auction proceeds of other real estate (see Supreme Court Decision 97Da9352, Dec. 22, 1998). In this case, if the mortgagee who received the right of priority on wage claims before the auction commencement of the auction procedure (see Supreme Court Decision 20097Da265, supra.
In the same purport, the court below is justified in holding that the plaintiff may participate in the distribution in subrogation of the wage creditors of this case, since the plaintiff did not demand a distribution from the real estate auction procedure of this case until the date of the successful bid, but it is proved that the right to the provisional seizure against the real estate of this case is a priority right and the plaintiff has the right to subrogate the wage creditors of this case, and therefore, it is not erroneous in the misapprehension of legal principles as argued in the Grounds for Appeal. Therefore, all the grounds for
3. Judgment on the grounds of incidental appeal
When the mortgagee of a real estate at auction proceeds from some of the several real estate owned by the employer who has secured the lien on wage claims, and the mortgagee of the real estate at auction exercises the lien on wage claims in subrogation of the wage creditors for the proceeds of the auction proceeds of other real estate in accordance with the latter part of Article 368(2) of the Civil Act by analogy, the mortgagee may exercise the lien on wage claims in subrogation of the wage creditors. If the proceeds of auction from the exercise of the lien on wage claims are simultaneously distributed to the number of real estate owned by the employer, only the amount calculated by dividing the amount that was not distributed to the wage creditors in proportion to the proceeds
In the same purport, it is reasonable that the Plaintiff calculated the amount that the Plaintiff could receive by subrogation from the auction proceeds of the instant real estate in consideration of the ratio of the share of wage claims to be distributed to the wage creditors among the auction proceeds of each real estate where the proceeds of the auction proceeds of the entire real estate owned by the Young Construction securing the lien on wage claims of the instant wage creditors are distributed simultaneously. In so doing, the lower court did not err by misapprehending the legal doctrine or by violating the precedents, such as the assertion of the grounds of incidental appeal
4. Determination as to the plaintiff's successor's motion for participation
Although the Plaintiff’s succeeding intervenor filed an application for intervention in the instant claim against the Youngjin Construction with the Plaintiff’s successor, the Plaintiff’s succeeding intervenor was not allowed in the appellate court, which is a legal court (see Supreme Court Decision 98Da51169, Mar. 9, 2001). Thus, the Plaintiff’s succeeding intervenor’s application for intervention is unlawful.
5. Conclusion
Therefore, all appeals and incidental appeals are dismissed, and the application for intervention by the plaintiff succeeding intervenor is dismissed, and it is so decided as per Disposition with the burden of litigation costs.
Justices Zwon (Presiding Justice)