[2] Whether Article 368 (1) of the Civil Code on Joint Mortgage may apply mutatis mutandis to cases where a housing lessee receives a distribution from both the building site and the building on a small amount of security deposit (affirmative)

[3] The meaning of "the auction price for each real estate" under Article 368 (1) of the Civil Code

[2] The right to claim for the return of small amount of security deposit under Article 8 of the Housing Lease Protection Act is the so-called statutory security right that can be paid in preference to claims secured by mortgages and taxes on the leased house. Where a housing lessee receives dividends from both the building and the building, the right to claim for the return of small amount of security deposit is placed in a position similar to the joint mortgagee for the whole building site and the building. Therefore, when the building site and the building are sold simultaneously and the auction proceeds are distributed to a housing lessee at the same time, the right to claim for the return of small amount of security deposit should be applied mutatis mutandis

[3] "The auction proceeds of each real estate" under Article 368 (1) of the Civil Code refers to the balance after deducting the auction expenses and senior claims to be borne by the real estate in question from the sale proceeds.

In light of the facts that Defendant 1 completed a move-in report on April 23, 1996, and April 26, 1996, the lower court determined that Defendant 2 occupied the instant housing on April 9, 196, and that it was difficult for the Defendants to enter into a move-in report on April 9, 196, 196 and completed the move-in report on January 19, 1996, and that the Plaintiff’s employees were to move-in on April 26, 1996 to Nonparty 1 (owner of the instant housing), and that it was not possible for the Defendants to enter into a move-in report on the instant housing on April 9, 196, 196 to KRW 90,00,000,000 and KRW 96,00,000,000 to KRW 96,00,00,000,000 for the following reasons.

2. As to the misapprehension of the legal principle on the rectification of the distribution schedule

A. Even in a case of a blanket auction of the sites and buildings, the distribution procedure basically does not differ from the case of an individual auction. Thus, as in the case of an individual auction of the sites and buildings, a right holder on the sites shall receive dividends from the proceeds from sale of the sites, and from the proceeds from sale of the buildings, a right holder on the buildings shall receive dividends from the proceeds from sale of the buildings. Therefore, in the case of a blanket auction of the sites and buildings, if the creditors and the claims to receive dividends from the proceeds from sale of each property are different,

In this case, an objection against the distribution schedule should be separately processed as a subject matter of the distribution schedule prepared for each object, and even if the distribution schedule for the building site and building was prepared for one, this is merely a combination of the distribution schedule for the proceeds from sale of the building site and the distribution amount of each creditor of the distribution schedule for the proceeds from sale of the building, and thus, all proceeds from sale of the building site were distributed to the right holder as to the building site. However, in the case of only the distribution order among them, where only the distribution order among them is at issue, a person who did not receive a distribution as a senior creditor against the building site may raise an objection against the creditor who was preferentially distributed to the senior creditor, and the junior creditor would not change the distribution amount from the proceeds from sale of the building

The court below held that since the proceeds from the sale of the housing site of this case were fully distributed to the right holder of the housing site, the defendants, subordinate to the plaintiff, did not receive dividends from the plaintiff due to the payment of the proceeds from the sale of the housing site, the plaintiff may raise an objection to the distribution against the defendants, the junior right holder for the housing site portion. Such judgment of the court below is just in accordance with the above legal principles, and there is no violation of the law as to

B. The Defendants asserted that the portion of the proceeds from sale of a site and the portion of the proceeds from sale of a building cannot be separated from the portion of the proceeds from sale of a building out of the amount of dividends under the instant distribution schedule as one of the instant distribution schedule. However, according to the evidence No. 10 (Records No. 153 of the record, the distribution court shall calculate the proceeds from sale of a site as KRW 270,076,079, and the proceeds from sale of a building as KRW 332,853,062, and the proceeds from sale of a building as well as the interested parties of the site and the building separately organized the amount of the proceeds from sale of the building, and then arranged the creditors' dividends order, in determining the creditors' dividends order, the Plaintiff’s 8, 6, 6, 4, 1, 7, 5, and 5, 12, 10, and 5 were conducted in the order of the Defendants, the Plaintiff, and Nonparty 5. Accordingly, in view of the amount of the proceeds from sale under this case’s dividends.

3. As to the assertion that the amount of dividend has been erroneously calculated

A. The right to claim the return of small amount of deposit stipulated in Article 8 of the Housing Lease Protection Act is the so-called statutory security right that can be paid preferentially to claims secured by mortgages and taxes on the leased house. In case where a housing lessee receives dividends from all the sites and buildings, the right to claim the return of small amount of deposit is placed in a position similar to the joint mortgagee for the whole site and buildings, and in case where the building site and the building are sold at the same time and the proceeds are distributed to a housing lessee at the same time, Article 368(1) of the Civil Act shall apply mutatis mutandis to the sale of the building site and the building, and the share of the claim shall be determined in proportion to the proceeds of the auction of the building site and the building (see Supreme Court Decisions 200Da32475, Sept. 29, 200; 9Da22311, Nov. 27, 2001; 'the proceeds of auction of each real estate' in Article 368(1) of the Civil Act refers to the balance of the auction cost and senior claim.

B. However, in order to calculate the amount that the Plaintiff and the Defendants received as dividends from the instant building and the instant building, the lower court determined the amount of dividends by allocating the amount of KRW 10 million from the auction proceeds of the site and the auction proceeds of the building, which are all senior creditors of the Plaintiff and the Defendants, the lower court erred in that the lower court determined the amount calculated by deducting the amount of KRW 130 million for the instant Samsung Life Insurance Co., Ltd., a senior creditor of Nonparty 6, as well as creditors of the building, from the amount of dividends of KRW 135,614,020, and the amount of dividends of KRW 327,355,515 for the building proceeds. In so doing, the lower court determined the amount of dividends from the sales proceeds of the site and the building proceeds of KRW 2,929,21 as the ratio of the sales proceeds of the building site and the building proceeds of KRW 485,55,000,000 for the building proceeds of sale.

C. However, in the instant case, where the court below correctly prepares a distribution schedule as alleged by the Defendants, 137,390,514 won, which was distributed to creditors prior to the Plaintiff, from the land sale price of KRW 270,075,313, which was reasonably calculated by the court below (i.e., KRW 74,461,293 + KRW 130,000,000 + KRW 132,684,799, remaining after subtracting the Samsung Life Insurance Co., Ltd. + KRW 62,929,221), shall be distributed to the Plaintiff. Since the amount actually received by the Plaintiff is only KRW 96,070,067, the amount actually received by the Defendants shall be deemed to have been distributed to the Defendants. The Defendants’ dividends from the land and building sale price of the Defendants shall be deemed to have been distributed in full in proportion to the total amount of simultaneous dividends from the joint mortgages, and the Defendants’ dividends ratio shall be deemed to have been distributed only 360% of the proceeds from sale.

In addition, in accordance with such legal principles, when the Defendants calculated the amount distributed from the proceeds from the sale of a site, Defendant 1 is KRW 17,629,315, and Defendant 2 is KRW 18,985,417. The Plaintiff’s claim (it refers to KRW 441,595,558, which exceeds the maximum debt amount of the mortgage) is more than the sum of the amount already paid by the Plaintiff (it refers to KRW 96,070,067) and the total amount paid to the Defendants out of the proceeds from the sale of the site (it refers to KRW 36,614,732). Accordingly, the amount of dividends of the Defendants out of the distribution schedule of this case should be deleted, and the distribution schedule should be revised by fully distributing the amount to the Plaintiff.

Nevertheless, since the lower court partially dismissed the Plaintiff’s legitimate claim within the scope of the above amount, it can be seen that the lower court’s judgment is more favorable to the Defendants.

Therefore, although the judgment of the court below on the calculation of the dividend amount received from the land sale price was partly erroneous, there is no possibility that the Defendants would change more favorablely than the amount cited by the court below even if it is accurately calculated, and the conclusion of the court below is bound to be maintained in this case where only the Defendants appealed.

Ultimately, this part of the grounds of appeal cannot be accepted.

4. Conclusion

Therefore, all appeals are dismissed, and the 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 Cho Cho-Un (Presiding Justice)