[배당이의][공1992.5.15.(920),1392]
Where a senior or junior provisional attachment claim exists with respect to a provisional registration security right, the method of distributing the proceeds by auction and where the senior and junior provisional attachment creditor are the same;
In the event of an auction, etc. on any real estate for which a provisional registration for security has been made, a person having a provisional registration security right shall be deemed to have the right to obtain preferential payment on his/her claim more than other creditors, and in this case, the establishment registration of a mortgage is deemed to have been made at the time the provisional registration for security was made with respect to the order of priority as a mortgage. Thus, in paying dividends to the remainder of the proceeds excluding the auction expenses out of the proceeds from an auction of real estate in cases where a senior or junior provisional seizure claim exists with respect to a provisional registration security right, the person having a provisional registration security right pays dividends to the senior provisional seizure claim in proportion to the amount of preferential seizure claim and the senior or junior provisional seizure claim in proportion to the proportional distribution amount according to the first claim amount. However, the person having a provisional registration for security is recognized to have a preferential payment right, and the person having a right to obtain preferential registration for the above junior provisional seizure claim may be paid by absorption it from the amount
Articles 13 and 16 of the Provisional Registration Security Act, Article 659 of the Civil Procedure Act
[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Park Jae-young and 2 others, Counsel for plaintiff-appellant-appellant-appellee)
Korea-U.S. Law Office, Attorney Gyeong-hee et al., Counsel for the defendant-appellant
Defendant Kim Jae-chul, Counsel for the defendant-appellant
Seoul High Court Decision 91Na13566 delivered on October 16, 1991
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
According to the reasoning of the judgment below, when distributing KRW 116,872,130, excluding the auction expenses, out of the proceeds from the auction of the real estate of this case, the court below dismissed the plaintiff's objection against the provisional attachment claim of KRW 100,00,00, and KRW 131,935,930, and the secured claim of the defendant's provisional attachment security right of KRW 72,00,00,000, all of the non-party 1 are in an equal status as a claim against the non-party 1. Thus, the court below received equal dividends according to the proportional distribution amount according to the first-lane claim, and further, the defendant, who is the person having the right to preferential payment, has the right to preferential payment as to the above subordinate provisional attachment claim of this case, can be paid by absorbing it from the amount of his claim to the satisfaction of his claim. Thus, the distribution schedule prepared as such by the auction court
A person who has a provisional registration security right has the right to obtain preferential payment from other creditors in the event of an auction, etc. on any real estate for which a provisional registration for security has been made, and in this case, the right to obtain provisional registration for security is deemed to have been established at the time the provisional registration for security was made (Article 13 of the Provisional Registration Security Act). Thus, in this case, the defendant who is a provisional registration security right cannot assert the right to preferential payment as to the first claim in the judgment of the plaintiff who has been registered for provisional registration, and as stated in its holding, has no right to preferential payment as to the second claim in the judgment of the plaintiff who has been registered for provisional registration, but the second claim in the judgment of the court below, which was registered for provisional registration, can be distributed by absorbing it from the amount of dividends received from the second claim in the judgment of the plaintiff which has been admitted to have the right to preferential payment, until the satisfaction of his claim, and the first and second claims in the
The court below's decision to the same purport is just and wrong, and it cannot be accepted as an independent opinion.
Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Jong-ho (Presiding Justice)