담보권 실행을 위한 경매절차에서 신청채권자가 나중에 청구금액을 확장하는 것은 늦어도 배당요구 종기일까지는 이루어져야 함[국승]
In an auction procedure to exercise a security right, it is necessary to extend the amount of the claim later by the applicant creditor until the completion date of the demand for distribution at the latest.
When the mortgagee of a right to collateral security voluntarily files an application for an auction to exercise the right to collateral security, the creditor who filed an application for an auction shall not later prohibit the expansion of the claim amount by means of increasing the incidental claim in accordance with the statement of claim in the case where the creditor who filed an application for an auction has indicated the incidental claim, such as interest, etc. as the claim for an auction; however, the expansion shall be made
Article 41 of the National Tax Collection Act: Attachment Procedure for Claims
2019 Ghana 142253 Return of Fraudulent Gains
○ Stock Company
Korea
2019.20
October 18, 2019
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The defendant shall pay to the plaintiff 6,187,30 won with 12% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.
In the event that a mortgagee voluntarily files an application for an auction to exercise a security right, the secured claim is finalized with a claim arising under a basic contract up to that time; however, in the event that only a part of the secured claim was stated in the claim amount and applied for an auction in the application for an auction, barring any special circumstance, the applicant creditor shall determine the amount to be distributed in the auction procedure up to the amount of the claim stated therein (see Supreme Court Decision 96Da495, Feb. 28, 1997): Provided, That such legal principle does not prevent the extension of the claim amount by means of increasing the incidental claim in accordance with the statement of claim in the event that the applicant creditor has indicated the incidental claim as the claim for an auction in the application for an auction, such as interest, etc. (see Supreme Court Decision 9Da11526, Mar. 23, 2001). Such extension should be made by the date prior to the completion date of demand for distribution
According to Gap evidence Nos. 5 and Eul evidence Nos. 1 and 2, the plaintiff submitted to the Incheon District Court on June 4, 2019 a claim statement of the total amount of KRW 84,260,305 (i.e., principal amount of KRW 78,00,000 + interest of KRW 6,260,305). Accordingly, it is recognized that on June 21, 2019, the distribution schedule was prepared in which the plaintiff distributed KRW 84,260,30 to the defendant, and KRW 6,187,30 to the defendant.
The execution court of the auction procedure of this case distributes to the plaintiff KRW 84,260,305, and distributes to the defendant KRW 6,187,330.
Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.
Judges Jeong-chul