(b)in the case of ‘A', the distribution order between the provisional seizure creditor and the creditor who filed an application for compulsory auction after the establishment registration of a mortgage and a collateral security;

(b)In the case of ‘A', in the distribution relationship between the creditor of provisional attachment and the creditor of provisional auction who applied for compulsory auction after the registration of establishment of a collateral security right and the creditor of provisional auction after the registration of establishment of a collateral security right, the mortgagee of senior provisional attachment cannot assert the right to preferential reimbursement against the creditor of senior provisional attachment, so he has received equal distributions according to the proportional distribution in accordance with the first claim amount, and then he has the right to preferential reimbursement against the creditor of the seizure of junior provisional attachment

In the event that the registration of provisional attachment was made first and the registration of establishment of a neighboring mortgage was completed, the registration of collateral security is made relatively invalid only in relation to the creditor of provisional attachment to the extent necessary to achieve the purpose of preserving the execution (see Supreme Court Decision 86Da2570, Jun. 9, 1987). In this case, in relation to the distribution relationship between the creditor of provisional attachment, the mortgagee of collateral security, and the creditor who applied for compulsory auction after the registration of establishment of the collateral security, the mortgagee cannot assert the right to preferential payment against the creditor of senior provisional attachment, and then the creditor of junior provisional attachment has the right to preferential payment in proportion to the amount of distribution in accordance with the first-lane claim, and thus, the creditor of provisional attachment can receive dividends from the creditor of provisional attachment to the satisfaction of his/her claim amount (see Supreme Court Decision 91Da4407, Mar. 27, 1992).

According to the reasoning of the order of the court below, the court below held that the amount of KRW 85,00,00,00, which is the minimum auction price of the real estate of this case, is no more than the amount of surplus funds to be distributed to the re-appellant when repayment of the auction procedure costs and the total amount of the secured debt of each of the above secured debt of the re-appellant which takes precedence over the claim of the re-appellant who is the creditor who seized the auction application of this case. Since the provisional attachment registration of the above 1 and 2 had been completed, first, the provisional attachment registration of the above 1 and 2 had been completed, the remaining amount of the secured debt of the 1st mortgage was deducted from the provisional attachment obligee and the creditor of the second secured debt of the re-appellant. However, the court below did not accept the conclusion of the court below's decision of this case's ground of appeal that there was no error in the misapprehension of legal principles as to the remaining amount of the secured debt of this case, which is distributed to the creditor of provisional attachment and the creditor of auction.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-chul (Presiding Justice)