경매신청서에 개괄적으로나마 표시하였다가 나중에 채권계산서에 의하여 구체적인 금액을 특정하는 것은 허용됨[국패]
It is allowed to specify the specific amount in accordance with the bond account statement later after the general indication on the application for auction.
It is not only to clarify the basis and scope of calculation of the amount of the claim generally stated in the application for auction, but also to specify the specific amount of the incidental claim after the applicant has comprehensively indicated the incidental claim such as interest and delay damages in addition to the principal of the claim in the application for auction.
Government District Court and Appellate Branch of the District Court 2015 Ghana73701
○ Limited Liability Company specialized in securitization
Republic of Korea and 4
August 21, 2015
September 4, 2015
1. Of the distribution schedule prepared by the above court on March 3, 2015, the amount of 250,000,000 won for Defendant KimA, 233,240,659 won for the dividends of Defendant KimA, and the amount of 29,760 won for Defendant Jae-ju for the amount of dividends of 0,765,765 won for Defendant Ko Jae-ju, and the amount of dividends of 1,065,765 won for Defendant Samsung Card Co., Ltd., and the amount of dividends of 393,084 won for Defendant Green Card Co., Ltd., and the amount of dividends of 52,957,347 won for the Plaintiff shall be corrected to 573,341,877 won, respectively.
2. The costs of lawsuit are assessed against the Defendants.
Cheong-gu Office
The same shall apply to the order.
1. Facts of recognition;
"A." From July 21, 2003 to March 8, 2007,CC bank loaned DaD a total of KRW 1,383,000,000 to DaD and applied for the auction of real estate at KRW 641,00,000 in total with respect to ○○○○○○-dong 98, 501, 503 (hereinafter "the instant real estate") owned by Dodddd and owned Dod and owned ○○○-dong 98, 1901, 503 (hereinafter "the instant real estate"). However, on May 22, 2014, the aboveCC bank applied for the auction of real estate at KRW 536,00,000 with respect to the instant real estate at issue, the Plaintiff acquired Dod and acquired the right to collateral security by transfer on June 2014.
C. On February 24, 2015, the Plaintiff submitted a bond account statement with the principal amount of the credit amount of KRW 665,347,268, and delay damages amount of KRW 118,57,595. The court below changed the bond statement with KRW 552,957,347 to the Plaintiff, excluding the pertinent tax 1,173,640 on March 3, 2015, and Defendant KimA, a lessee with a fixed date of KRW 250,00,000 and KRW 256,580 to the Defendant Republic of Korea (○○○○○, a delivery authority), and KRW 29,760, and KRW 29,760 on May 24, 2015, the Plaintiff and the Plaintiff were dissolved with the above EF Card Co., Ltd., Ltd. with each of the above EF Card Co., Ltd. on the one hand, 2301 and Defendant EF Card Co., Ltd.
[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 8, purport of the whole pleadings
2. The parties' assertion
The Plaintiff stated in the application form for auction at the time of the application for the auction of this case as the claim amounting to KRW 526,042,268. The Plaintiff asserted that the Plaintiff’s dividends amounting to KRW 451,730,648 as the principal of household ordinary loan and KRW 65,00,000 as the maximum debt amount out of household ordinary loan loan, and KRW 451,730,648 as the maximum debt amount, and KRW 72,108,380 as the principal of household ordinary loan and KRW 65,00,000 as the maximum debt amount, and KRW 65,839,028 as the maximum debt amount, among corporate ordinary loan loan, KRW 451,730,648 as the principal amount and delay damages, KRW 72,108,380 as the principal amount, KRW 250,00,00, KRW 3198 as the dividend amount.
As to this, Defendant KimA, Korea, BB card companies, andCC card companies asserted that the amount of claims filed by the Plaintiff is specified only as KRW 526,042,268, and that the principal and incidental claims are not specified among them, it is not possible to determine the amount of claims through the claim account statement, or to expand the amount of claims through the claim account statement. Accordingly, the instant distribution schedule is legitimate.
3. Determination
A. The purport of Article 80 subparag. 3 of the Civil Procedure Act, which applies mutatis mutandis to the auction procedure to exercise a security right under Article 268 of the Civil Procedure Act, and Article 192 subparag. 2 and subparag. 4 of the Civil Execution Rule, is not only to specify the secured debt which is the cause of a request for auction to the applicant creditor at the stage of the request for auction, but also to determine the amount of the claims of the applicant creditor within the limit of the amount indicated in the request. Thus, in cases where the applicant creditor files an application for auction with only a claim amount, barring any other special circumstance, the claim amount of the applicant creditor shall be determined within the limit of the claim amount stated in the application amount, and thereafter, the claim amount cannot be expanded by the method such as expanding the claim amount to the account statement. However, if the applicant creditor comprehensively indicated in the application for auction as a claim amount, but later specify the specific amount of the incidental claim amount based on the account statement, it is merely permissible to determine the basis and scope of the claim amount indicated comprehensively in the application for auction.
B. We examine this case. Comprehensively taking account of the purport of the arguments set forth in Gap evidence 7 and 8, the plaintiff stated 526,042,268 won in the "Indication column of the claim" and stated 1,115,479 won in total and 451,730,648 won in total and 17% interest rate from May 8, 2014 to full payment rate of 17%, 460, 460,000 won in total and 50% in loans, 2000 won in total and 50% in loans, 40, 205% in total and 50% in loans, 46% in total and 50% in loans from May 8, 2014 to full payment rate of 50, 2000 won in loans, 205% in total and 50% in loans, 40% in total and 50% in loans per annum 17,5015% in loans.
As shown in the above facts, the Plaintiff indicated the claim amount in the indication column of the claim claim in the application for auction among the application form of this case, and indicated that the above amount is part of the loan stated in the description of the claim amount and the damages for delay until the date on which the full payment is made. The cause of the application clearly stated that the above amount is the sum of 65,00,000 won equivalent to the maximum debt amount out of the loan for general household loan and the loan for corporate operation loan, thereby specifying the principal of the claim amount at the time of application for auction, and it can be deemed that the Plaintiff comprehensively indicated the incidental claim such as interest and delay damages in addition to the principal of the claim. Therefore, the submission of the claim statement including the interest claim amount until the date of distribution date cannot be deemed to constitute an extension of the claim amount. Accordingly, the dividend court should determine the Plaintiff’s claim amount as the claim amount at the time of application for auction to the extent that it stated the basis and scope of the calculation basis of the specified principal and incidental claim amount, and it cannot be deemed to constitute an extension of the claim amount.
C. Therefore, the amount of dividends to the Defendant, who is subordinate to the Plaintiff 4,5, was KRW 2,136,580, the amount of dividends to the Defendant 1,065,785, and the amount of dividends to Defendant 2B card Co., Ltd., and KRW 393,084, respectively, shall be deleted; the amount of dividends to Defendant 3,00,000,000 for Defendant KimA, who is subordinate to the Plaintiff 4,5,000; and the amount of dividends to the Plaintiff shall be corrected to KRW 58,839,028.
4. Conclusion
Thus, the claim of this case is accepted on the ground of the reasons.