Whether the latter part of Article 368 (2) of the Civil Act shall apply mutatis mutandis to the mortgagee who was disadvantaged in the simultaneous dividend as a result of the preferential repayment by wage creditors from the auction proceeds, where part of the number of real estate owned by the employer was sold first (affirmative)

A lien on wages, etc. under Article 30-2 (2) of the former Labor Standards Act (repealed by Act No. 5305, Mar. 13, 1997) is a so-called statutory security right that can be paid preferentially to claims secured by mortgages, taxes, etc. on the whole property of an employer, and where part of the number of real estate owned by the employer is first sold at auction and the wage creditors have been given preferential payment out of the auction price, and where the mortgagee of the real estate at auction has been given preferential payment out of the above number of real estate under Article 368 (1) of the Civil Act, the latter part of Article 368 (2) of the same Act shall apply mutatis mutandis to the case where the mortgagee of the real estate at auction was at a disadvantage than the case where the wage claim is simultaneously distributed from the above number of real estate under Article 368 (1) of the Civil Act. If

Article 30-2(2) of the former Labor Standards Act (repealed by Act No. 5305, Mar. 13, 1997); Article 368(2) of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

National Bank of Korea (Attorney Kim Chang-soo et al., Counsel for the defendant-appellant)

Industrial Bank of Korea (Law Firm Shin & Yang, Attorney Kang Jae-hoon, Counsel for defendant-appellant)

Seoul High Court Decision 96Na38898 delivered on January 23, 1997

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

According to the judgment of the court of first instance cited by the court below, the court of first instance determined that the above amount of KRW 1,00,000,000 for factory sites, factory buildings and machinery and apparatus located in Daegu-dong 3-dong, Daegu-dong, 300, which was owned by the non-party 3 company (hereinafter referred to as the "non-party 4 company") was dividends of KRW 16,24,611 in preference to the above amount to be distributed to the non-party 1 and the non-party 29 for dividends of KRW 45,612,165 on March 8, 1995 in preference to the above amount to be distributed to the non-party 1 and the non-party 29, 479,387,554 won in preference to the above amount to be distributed to the non-party 40,479,387,19,272 won in preference to the above amount to be distributed to the non-party 3 company's dividends of KRW 130,130,4940,40.

The lien on wages, etc. under Article 30-2 (2) of the former Labor Standards Act (amended by Act No. 5305, Mar. 13, 1997) is a so-called statutory security right that can be paid preferentially to claims secured by mortgages, taxes, etc. on the whole property of the employer. If part of the number of real estate owned by the employer is sold first, and the wage creditors have been awarded preferential payment out of the auction price as a result of the auction, and the mortgagee of the real estate at auction has been at a disadvantage than the simultaneous distribution of wage claims from the above number of real estate pursuant to Article 368 (1) of the Civil Act, the latter part of Article 368 (2) of the former Labor Standards Act shall apply mutatis mutandis, and if the wage creditors have received dividends at the same time from the above number of real estate, the mortgagee may receive dividends in preference to other real estate auction procedures on behalf of the wage creditors who have

In the same purport, the decision of the court of first instance is just, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal.

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.

Justices Seo Sung-sung (Presiding Justice)