[2] Whether a mortgagee holding a certificate of execution can seek a exclusion of compulsory execution requested by the ordinary creditor of the person who has created the security interest (affirmative), and whether it can be paid dividends in preference to the ordinary creditor of the person who has created the security interest by participating in the distribution procedure by double seizure (affirmative)

[2] A mortgagee holding a certificate of execution may, barring special circumstances, seek the exclusion of compulsory execution by a general creditor of the person who has created the security interest in the subject matter by filing a lawsuit with a third party, based on the status of a mortgagee, on the basis of the third party’s position. However, without following the method, he/she may participate in the distribution procedure of the subject matter by double seizure of the subject matter pursuant to the execution document, and may receive dividends in preference to the general creditor of the person who has created the security

A. Of the distribution column of the distribution schedule prepared on November 19, 2002, the Jeonju District Court 2002 Tag725 changed the amount of dividends to the plaintiff as KRW 5,639,620 to KRW 43,598,83 won, the amount of dividends to the defendant as KRW 65,000,000 to KRW 27,040,737 won and the amount of dividends to the defendant respectively.

B. The plaintiff's remaining claims are dismissed.

2. The total costs of the lawsuit shall be divided into two parts, one of which shall be borne by the plaintiff, the other, and the defendant, respectively.

A. On February 12, 2001, the non-party, who engages in the fish farming in five parcels, other than the previous Jinandong-gun ( Address omitted), entered into a transfer security agreement with the non-party on May 29, 200 with respect to all pigs raised or to be raised in the said pigs owned by the non-party on May 29, 201 (hereinafter referred to as "the aggregate of pigs") and transferred them by the method of possession revision, the non-party, on June 12, 2001, entered into a deed of transfer security agreement with a notary public, which recognizes compulsory execution in the event that the non-party fails to repay the above loans to the cream, and entered into a deed of transfer security agreement with the non-party on June 12, 2001, in order to secure this, he/she entered into a loan for consumption and loan agreement with the public official of Gwangju-dong Office (hereinafter referred to as "Seoul-dong Office").

B. After that, on August 24, 2001, the Nonparty borrowed KRW 65 million from the Defendant and transferred the above aggregate goods by means of transfer transfer contract with the Defendant in order to secure it, and in case the Nonparty did not repay the above loan to the Defendant, a notary public, which acknowledged the compulsory execution immediately, prepared and delivered a notarial deed of money loan contract for transfer and security by means of transfer and security with the Defendant.

C. In addition, on February 18, 2002, the non-party borrowed KRW 100 million from the plaintiff on February 25, 2002 at the maturity date, and the delayed interest rate at 25% per annum, and when the non-party entered into a security agreement with the plaintiff as to the above aggregate and transferred it to the plaintiff by way of possession revision, a notary public, which recognizes that the non-party immediately is subject to compulsory execution, in the event that the non-party did not repay the above loan to the plaintiff, prepares and delivers a notarial deed of monetary loan for loan for security on the part of the law firm partnership office No. 73, 2002.

D. However, on July 9, 2002, the non-party neglected to perform the obligation against the plaintiff and the defendant with respect to the above aggregate goods, and ① on the basis of the execution certificate, the plaintiff applied for compulsory execution with the amount claimed as KRW 201,532,691 (No. 2002. 2385) and seized by the execution officer. ② On July 30, 2002, the defendant applied for compulsory execution with the amount claimed as KRW 65 million (No. 2002. 2706 of the Jeonju District Court), and ③ again, on August 13, 2002, the execution was conducted in duplicate by applying for compulsory execution with the amount claimed as KRW 5,60,000 based on the execution certificate.

E. On November 19, 2001, on the date of distribution of the distribution procedure case (the Jeonju District Court No. 2002Ma725, Nov. 19, 2001), which started in the concurrent seizure procedure as above, the court of execution prepared a distribution schedule with the content of dividends to the Defendant, 5.6 million won to the Defendant, 65 million won to the second priority, 65 million won to the Defendant, 639,620 won to the third priority, and 5,639,620 won to the Plaintiff, respectively, and the Plaintiff appeared on the date of distribution and raised an objection to the whole amount of dividends to the Defendant.

2. Based on the aforementioned factual basis, the lower court maintained the judgment of the first instance court and dismissed the Plaintiff’s appeal on the ground that: (a) the mortgagee cannot be deemed to have delivered the movable property in the order of acquiring the proceeds of transfer in the order of acquiring the proceeds of transfer in the order of acquiring the proceeds of sale in the order of acquiring the proceeds of sale in the order of acquisition by the Defendant and the Plaintiff’s order of possession, where the proceeds of transfer are distributed to the Defendant in the order of the first instance court, as in the relationship with the person who created the security by transfer; and (b) the lower court did not assert the ownership of the same as in the relationship with the person who created the security by transfer; and (c) in order to establish the bona fide acquisition of the movable property, the first instance court maintained the judgment on the ground that there was no special circumstance between the lower court and the lower court.

3. However, we cannot agree with the above determination by the court below for the following reasons.

In cases where a debtor transfers movable property under his/her possession to a creditor in order to secure a pecuniary obligation, and the debtor has decided to continue to possess it, barring any special circumstance, ownership of movable property is merely transferred in trust, and thus, in the internal relationship between the creditor and the debtor, the debtor holds ownership of the movable property, but in external relationship, the debtor becomes an unentitled person to the creditor, and even if the debtor concludes a contract to establish a security for transfer with another creditor and transfers it to another creditor by the method of possession revision, it is not recognized as bona fide acquisition. Thus, the creditor who has concluded the contract later cannot acquire the security right for transfer (see Supreme Court Decisions 2004Do1751, Jun. 25, 2004; 2003Da30463, Oct. 28, 2004; 2003Da30463, Oct. 28, 2004). Meanwhile, a mortgagee who possesses a certificate of execution can seek a double seizure of the movable property by means of a third party's lawsuit against the debtor.

As duly determined by the court below, if both the plaintiff and the defendant concluded a security agreement on the aggregate goods as owned by them between the non-party and the non-party in order to secure the principal and interest of the debt for the cream, and completed the delivery by means of the possession and amendment of possession, the plaintiff and the defendant cannot acquire the security interest by concluding a security agreement on the said aggregate goods with the non-party in order to secure the claim from the non-party. Thus, the plaintiff and the defendant cannot acquire the security interest. Thus, the auction procedure upon the application for a compulsory auction by the plaintiff and the defendant is limited to the general creditor against the non-party who have established the security interest, and it does not fall under the realization procedure for exercising the security interest on movable property, and therefore, the balance remaining after deducting the amount of dividends for the cream goods as a mortgagee from the amount of dividends calculated by deducting the cash cost from the proceeds of realization shall be distributed in proportion

Nevertheless, the judgment of the court below that the plaintiff and the defendant acquired the right of transfer for security overlappingly and the order of distribution is in accordance with the order of establishment of the right of transfer for security, which is erroneous in the misapprehension of legal principles as to the validity of the contract of double transfer for security by the method of possession revision, which affected the conclusion of the judgment, and thus, the ground of

4. Therefore, from 76,239,620 to 76,239,620 to be actually distributed dividends of the aggregate goods which are the object of security, the remaining amount of KRW 5,639,620 to be distributed from 36,639,620 to 43,598,883 won, the defendant 27,040,737 won shall be divided according to the amount of the claim of the plaintiff and the defendant in the second order to the plaintiff in proportion to the amount of the claim (no dispute between the plaintiff and the defendant with respect to the dividend amount).

5. Therefore, the plaintiff's claim of this case is justified to the extent of seeking modification of the distribution schedule as above, and the remainder is dismissed as there is no reason. Thus, the part against the defendant among the judgment of the court below and the judgment of the court of first instance regarding the defendant is modified as stated in Paragraph 1, and the total costs of the lawsuit are two minutes, and the remainder is borne by the plaintiff, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Jack-dam (Presiding Justice)