A. In an auction procedure under the former Auction Act, where the person who created the right to collateral security and the debtor are identical with the person who created the right to collateral security and, without a third acquisitor or junior mortgagee, the amount of the claim exceeds the maximum debt amount of the successful bid price, whether the amount exceeding the maximum debt amount of the mortgagee should be appropriated for the repayment of the

B. In an auction procedure under the former Auction Act, where the mortgagee and the debtor are identical to the mortgagee, whether the mortgagee may demand the delivery of the successful bid price for the claim exceeding the maximum debt amount (affirmative)

A. In an auction procedure conducted under the former Auction Act (repealed by Act No. 4201, Jan. 13, 1990), if the debtor is identical to the mortgagee, the maximum debt amount of the right to preferential reimbursement against the junior mortgagee or the third acquisitor of the real estate for the purpose of the mortgage is limited to claims within the maximum debt amount. It cannot be viewed as the so-called limitation of liability that only claims can be repaid within the maximum debt amount of the real estate. Thus, in a case where the claim amount of the mortgagee exceeds the maximum debt amount of the successful bid price unless the third acquisitor or the subordinate mortgagee exists, even if the amount exceeds the maximum debt amount of the successful bid price, it shall not be refunded to the mortgagee, but shall be appropriated for the repayment of the debt exceeding

B. In an auction procedure conducted under the former Auction Act (repealed by Act No. 4201, Jan. 13, 1990), the provisions of Article 5 of the former Act on Special Cases Concerning the Settlement of Civil Disputes concerning Claim for Distribution, Etc. under Summary Procedure, which is premised on allowing a demand for distribution as a result of no application of the provisions concerning the distribution procedure under the Civil Procedure Act, shall apply mutatis mutandis. The provisions of Article 5 of the former Act on Special Cases Concerning the Settlement of Civil Disputes concerning Claim for Distribution, Etc., under the premise that a demand for distribution is allowed (amended by Act No. 4204, Jan. 13, 1990) shall not apply to a claim exceeding the maximum debt amount of the mortgagee who is entitled to receive a distribution in

A.B. Article 34(2)(b) of the former Auction Act (repealed by Act No. 4201 of Jan. 13, 1990). Article 5 of the former Act on Special Cases concerning the Settlement of Civil Disputes in Summary Proceedings (amended by Act No. 4204 of Jan. 13, 1990)

A. Supreme Court Order 71Ma1151 Dated January 26, 1972 (No. 20) (No. 72Da485, 486 decided May 23, 1972 (No. 202Du73), Supreme Court Decision 80Da2712 decided Nov. 10, 1981 (Gong1982, 42) (No. 68Da2080 decided Dec. 17, 1968) (No. 75Da884 decided Jan. 13, 1976 (Gong1976, 896)) (Gong1689 decided Feb. 27, 1979)

Attorney Lee Jae-ho, Counsel for the Korea Credit Guarantee Fund

Defendant

Seoul Civil District Court Decision 91Na22765 delivered on November 27, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

(1) In order to secure the Defendant’s claim against the Nonparty, if the auction court distributes the successful bid price to the right holder based on the right to collateral security, which was established on two parcels of forest owned by the said Nonparty, to the Government branch of the Seoul District Court (hereinafter the auction court), the amount of KRW 6,160, and the amount of KRW 50,100,000, out of the total sum of the principal and interest of the secured claim reported by the Defendant, 73,100,000, the amount of KRW 18,258,650, and the remaining amount of KRW 23,100,000,000 and KRW 30,000,000,000 for the remaining claim amount of KRW 30,000,000,000 and KRW 300,000,000,0000, the amount of the provisional attachment claim was apportioned to the Defendant before the commencement of the auction, and the Plaintiff did not claim the said amount of KRW 13030,130,130.

(2) In this case, if the debtor is identical to the person who created the right to collateral security, the maximum debt amount of the right to collateral security is merely meaningful within the scope of the right to preferential reimbursement against the person who acquired the right to collateral security or the third party on the collateral security, and the real estate can only be repaid within the scope of the maximum debt amount. Thus, if the claim amount of the person who created the right to collateral security exceeds the maximum debt amount of the successful bid price, unless the third party acquired the right to collateral security or the person who acquired the right to collateral security has no such right, even if the claim amount exceeds the maximum debt amount of the successful bid price, it shall not be refunded to the person who created the right to collateral security, but shall be appropriated for the repayment of the debt exceeding the maximum debt amount of the person who created the right to collateral security. Meanwhile, in an auction procedure conducted under the former Auction Act repealed by Act No. 4201 on January 13, 1990, the court below's determination on the claim amount cannot be justified by misapprehending the legal principles as to the above maximum debt amount.

(3) 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 Lee Chang-chul (Presiding Justice)