2. The defendant's remaining appeal is dismissed.

3. One-half of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Of the distribution schedule prepared by the above court on October 12, 2009 with respect to the compulsory auction case for real estate at Suwon District Court Woo-gu 2009,568, the amount of 8,066,607 won against the plaintiff shall be 21,39,941 won, and the amount of 40,000,000 won against the defendant shall be 26,666,666 won, respectively. The defendant shall pay to the plaintiff 26,66,66 won and the amount calculated by the rate of 20% per annum from the day following the delivery date of the complaint of this case to the day of full payment.

【Purpose of Appeal】

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

In addition to adding "The plaintiff received 20 million won as dividends on October 12, 2009 in accordance with the above distribution schedule on October 12, 2009", the reasoning for this part of the court of first instance is the same as the part of the above basic facts, and therefore, it shall be quoted in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. The plaintiff's assertion

The plaintiff asserts that the part of the plaintiff's objection on the date of distribution should be distributed to the plaintiff, and other parts should be returned to the plaintiff as unjust enrichment by the defendant. The plaintiff asserts that the defendant's right to collateral security should not exceed KRW 10 million, and that the five-year extinctive prescription has expired, and that the plaintiff's right to collateral security should be returned to the plaintiff.

On April 20, 198, the Defendant was granted a right to collateral security on the instant land to lend and secure the Plaintiff KRW 30 million, and thereafter agreed on July 21, 200 to be paid additional interest of KRW 10 million in addition to the principal with the Plaintiff on July 21, 2000. Thus, the Defendant’s right to collateral security is the Defendant’s right of KRW 40 million, and this is not a commercial right, and the ten-year statute of limitations has not expired since the ten-year statute of limitations has not been applied. Accordingly, the Plaintiff’s claim cannot be complied with.

3. Determination

A. The defendant's claim amount

In addition to Gap evidence Nos. 1, 6, 7, and Eul evidence Nos. 1, 2, and 3, the following circumstances, which are acknowledged by comprehensively considering the purport of the entire pleadings, namely, the defendant, on April 16, 1998, issued and delivered a promissory note as of April 20, 1998, which entered as of July 20, 1998, with the maximum debt amount of KRW 40 million, and issued and delivered them. The defendant, on April 20, 1998, remitted the principal and interest of KRW 10 million to the Green Public Account Nos. 1, 2,000,000,000 to the public Account No. 300,000,000,000 won, the defendant's payment of KRW 400,000,000,000,000,0000,000 won to the public Account No. 97,20,000.

In this regard, the plaintiff asserts that part of the defendant's claim on the right to collateral security remains due to the repayment of part of the defendant's claim, but there is no evidence to acknowledge this.

(b) Extinctive prescription;

(i)Completion of the statute of limitations;

In the absence of counter-proof evidence, a company's act is presumed to have been conducted for its business, and a company's act for its business should be deemed a commercial activity (Articles 5(2) and 47 of the Commercial Act); and a claim arising from an act that constitutes a commercial activity only one of the parties is also a commercial claim and the period of extinctive prescription under Article 64 of the Commercial Act applies to the claim for a period of five years under Article 64 of the Commercial Act (Article 3 of the Commercial Act). Therefore, a company's act of borrowing money from the Plaintiff, which is a merchant, constitutes a commercial activity as presumed to have been conducted for its business and constitutes a commercial activity, and thus, the Defendant's claim for a loan to the public property is subject to five years extinctive prescription as a commercial claim. However, although the Defendant did not assert that the claim for the public property is not a commercial claim, there is no other evidence to acknowledge it,

Therefore, in order to preserve the above claim, the plaintiff, who is a creditor of the Green Community, can assert the completion of the extinctive prescription of the claim of this case on behalf of the debtor, who is the debtor, for the sake of preserving the above claim, and the fact that the period of repayment of the claim of this case on the floating sum mortgage of this case has been extended until July 20, 202 is as seen earlier. Therefore, it is deemed that the extinctive prescription of the above claim was completed and extinguished on July 20, 2007 after five years have elapsed

【The Defendant’s assertion and judgment on the statute of limitations

Since the defendant prepared and delivered a written notice of payment to the plaintiff on July 21, 2000, the defendant alleged that the public official could not invoke the claim for the period of extinctive prescription by subrogation of the neighboring public official as long as he exercised his own right. However, since the act of preparing and delivering the above written notice of payment is merely an approval of the obligation, the statute of limitations proceeds again from that time. The plaintiff can invoke the new benefit of prescription by subrogation of the neighboring public official.

【Defendant’s assertion on waiver of the statute of limitations interest and judgment thereon

In addition, the defendant did not raise an objection to the distribution schedule on the date of distribution on December 9, 2009, which asserts that the public service constitutes the waiver of the statute of limitations interest.

In light of the above, in a case where the right to collateral security had been exercised with the debtor's claim on the date of distribution and the debtor did not raise any objection against the auction procedure until the proceeds were distributed and appropriated for partial repayment of the obligation, barring special circumstances, such as where the debtor was unaware of the progress of the auction procedure, the debtor shall be deemed to have renounced his/her right to collateral security by impliedly approving the debtor's claim (see, e.g., Supreme Court Decision 2001Da3580, Jun. 12, 2001). However, if other creditors of the debtor exercise the debtor's right to dispose of the debtor's claim on the date of distribution by subrogation of the debtor on the date of the debtor's exercise the debtor's right to dispose of the claim on the date of distribution, since the right to dispose of the debtor is limited, the mortgagee cannot oppose the debtor on

As to this case, the plaintiff's objection was raised regarding KRW 13,33,34 of the defendant's distribution date [the plaintiff's objection was paid KRW 20 million to the defendant, KRW 30,000, KRW 3066, KRW 666, KRW 300, KRW 360, KRW 360, KRW 3066, KRW 3066, KRW 3066, KRW 360, KRW 360, KRW 30666, KRW 360, KRW 360, KRW 30666, KRW 360, KRW 360, KRW 30666, KRW 3066, KRW 36666, KRW 36666, and the defendant's objection was not raised. The defendant's claim against this part of this case's distribution date was 606,000, KRW 3606666666, which was legally known.

Ultimately, the plaintiff's assertion is justified within the above scope of recognition.

4. Conclusion

Therefore, the part of the plaintiff's claim for correction of the distribution schedule is justified, and the part of the plaintiff's claim for correction of the distribution schedule is dismissed. Since the part of the plaintiff's claim for correction of the distribution schedule in the judgment of the court of first instance is justified with this conclusion, the defendant's appeal is dismissed, and since the part of the claim for correction of the distribution schedule in the judgment of the court of first instance is unfair with this conclusion different, the defendant's appeal is accepted and the judgment of the court of

Judges Kim Sung-soo (Presiding Judge)