2. Of the dividend table prepared on April 28, 1998, the amount of dividends to the defendant shall be KRW 16,407,787, and the amount of dividends to the plaintiff shall be corrected to KRW 15,000,000,00,000 among the dividend table prepared by this court on April 28, 1998.

3. The costs of the lawsuit shall be borne by the defendant in both the first and second instances.

The following facts can be acknowledged in full view of the statements in Gap evidence 1 to 4, evidence 5-1, 2, 14, 16, Gap evidence 6 and 7, evidence 8-1, 2, and evidence 9 through 12, respectively.

A. On January 20, 1994, the Defendant: (a) filed a provisional registration on January 17, 1994 with regard to the right holder’s share of 1/4 square meters of 215,242 square meters of forest land in Taesung-ri, Taesung-ri, Taesung-ri, Masan (hereinafter “instant real estate”); and (b) filed a provisional registration on January 17, 1994, with regard to the right holder’s share of 215,242 square meters of forest land (hereinafter “instant provisional registration”).

B. On May 8, 1996, the Plaintiff loaned 10,000,000 won to the above Kim Jong-dae on a monthly basis with interest rate of 3%, and on June 8 of the same year for the repayment period. On May 9 of the same year, on the instant real estate, the Plaintiff registered the establishment of a mortgage at KRW 15,000 with respect to the instant real estate as the debtor and the above Kim Jong-dae, the mortgagee, the collateral security holder, and the maximum debt amount of KRW 15,00,00,000.

C. On December 7, 1996, a decision to commence the auction for exercising a security right to the real estate of this case was rendered on December 7, 1996 by this Court No. 96 other or 23613. On the same day, the auction court notified the defendant to report the contents of the provisional registration of this case and the existence, cause, and number of claims in the case of provisional registration of security right, until December 14, 1996. The result of the auction procedure conducted (the provisional registration of this case was treated as being invalid by auction or successful bid on March 10, 1998) after the auction procedure was conducted (the provisional registration of this case was treated as being invalid by auction or successful bid on March 10, 1998). The auction court decided to permit the successful bid to the above number, which became final and conclusive on that date.

D. On April 24, 1998, the defendant submitted a claim statement stating that he/she has a loan claim of KRW 30,000,000 as of January 8, 1994 with the loan certificate, which is a documentary evidence, to an auction court. Accordingly, on the 28th day of the same month, the defendant deducted the execution cost of KRW 2,217,420 from the amount of KRW 18,625,20, which is to be distributed on the date of open distribution, and distributed all the remaining dividends of KRW 16,407,787 to the defendant, and the plaintiff raised an objection thereto and filed the lawsuit of this case on the same day.

2. Judgment on the plaintiff's assertion

The plaintiff asserts that distribution of KRW 16,407,787 to the defendant is illegal since the provisional registration of this case was made in order to preserve the order of the claim for ownership transfer registration, not only the provisional registration of this case, but also the provisional registration of this case was made in order to secure the defendant's false claim against the above Kim Shim, and the defendant did not report the contents of the provisional registration of this case and the existence, cause, and amount of the claim within the time limit set by the court of auction to report the claim, and therefore, the defendant did not pay KRW 16,407,787 to the defendant. Accordingly, on January 18, 1994, the defendant paid KRW 30,000 to the above Kim Jongm on 194 and completed the provisional registration of this case to secure the claim.

Where a decision is made to commence an auction, etc. of real estate on which a provisional registration is made for the transfer of ownership, the court shall give a peremptory notice to the person holding the right to the provisional registration to report the content thereof and the existence, cause, and amount of the claim (including interest and other incidental claims) when the provisional registration is a provisional registration for security (Article 16(1) of the Provisional Registration Security Act). If the right to the provisional registration for security made prior to the registration of seizure ceases to exist by sale, the creditor may receive a distribution of the proceeds from sale only when the provisional registration of the claim is made (Article 16(2) of the Provisional Registration Security Act). In light of the fact that the report of the above claim is about the period for reporting the obligation set by the court, the person holding the right to the provisional registration may receive a distribution by the auction at least until the auction date, like other creditors,

Therefore, even if the provisional registration of this case is deemed a provisional registration as a security as alleged by the defendant, according to the above facts, since the defendant reported credit on April 24, 1998 after the successful bid date ( March 10, 1998) passed, it cannot be said that the defendant's report on credit was effective. Thus, it is unlawful to recognize the defendant as a provisional registration right holder among the distribution schedule of this case and distribute a sum of KRW 16,407,787 in preference to the plaintiff in preference to the plaintiff. Accordingly, the above actual dividends of KRW 16,40,000 among the 16,407,787, the amount of KRW 15,000 should be preferentially repaid to the plaintiff's above loan claim, and the remaining dividends of KRW 1,407,787 should be maintained to the defendant.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking to correct the dividend amount of KRW 16,407,787 against the defendant as KRW 1,407,787 among the dividend table prepared by the court on April 28, 1998, and KRW 15,00,000 against the plaintiff as KRW 15,000 shall be accepted without any further determination as to the remainder. Since the judgment of the court below is unfair with different conclusions, it is so revoked and it is so decided as per Disposition by the court below to correct the dividend table as above.

Judges Scamba (Presiding Judge) et al.