[1] Whether an applicant creditor may extend the amount claimed by submitting a statement of claim, etc. in a voluntary auction procedure for exercising a security right (negative)

[2] The case holding that in case where a junior right holder cannot receive dividends of the remaining secured claims by applying for auction at a voluntary auction with only a part of the secured claims as the claim amount on the first and third secured claims based on the first and third secured claims, the amount distributed to the junior right holder cannot be deemed as having any legal ground

[1] In case where a creditor applies for a voluntary auction for the exercise of a security right, and only a part of the secured debt in the application for an auction as the claim amount, barring any other special circumstance, the applicant creditor shall be determined to the extent of the claim amount indicated in the pertinent auction procedure, and the claim amount shall not be expanded by the method that the applicant creditor submits a claim statement.

[2] The case holding that since a mortgagee with the first and second secured claims with the same claim as the secured claims submitted an application for auction by stating only a part of the secured claims as the claim amount based on the first secured claims, and submitted a claim statement expanding the claim amount after applying for a voluntary auction, without taking necessary measures such as "the remainder of the first secured claims or the third secured claims," it cannot be deemed that there is no legal ground to see that the distribution schedule was prepared and finalized by proceeding an auction procedure without taking measures such as "the second secured claims or the third secured claims."

[1] Article 601 subparagraph 3 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 16, 2002), Articles 80, 728, and 268 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 16, 200), 741 of the Civil Act (amended by Act No. 6626 of Jan. 16, 200), Article 593 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 16, 200), Articles 15, 595, 605, 605, (Article 88 of the current Civil Execution Act), Articles 728, and 268 of the former Civil Execution Act (amended by Act No. 6626 of Jan. 16, 202)

[1] Supreme Court Decision 96Da39479 delivered on July 10, 1998 (Gong1998Ha, 2059), Supreme Court Decision 98Da46938 delivered on March 23, 1999 (Gong199Sang, 733), Supreme Court Decision 99Da11526 delivered on March 23, 2001 (Gong2001Sang, 930)

The receiver-type (Law Firm Mad Co., Ltd., Counsel for the plaintiff-appellant-appellant) of the reorganization company

Republic of Korea and one other

March 19, 2004

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The plaintiff shall pay to the plaintiff 17,251,203 won, 59,945,130 won, and 20% per annum from May 15, 2002 to the service date of a copy of each complaint of this case, and 5% per annum from the next day to the day of complete payment.

1. Basic factual basis

The following facts are not disputed between the parties, or are recognized in full view of the whole purport of the arguments in Gap evidence 1-1, 2, 2-1 through 12, Gap evidence 3, 5-1, 1-5, and Eul evidence 1-5:

A. Neglected and Co., Ltd. (which was changed on November 13, 2001 to 'Hacontec Co., Ltd.'; hereinafter referred to as 'Hadicide Department') had a claim for the amount of indemnity in accordance with the repayment of the obligation against Edicide Co., Ltd. (hereinafter referred to as 'Edicide Department'). However, the number of Gedicides for which Edicide department was the representative director of Edicide Department had a joint and several liability for the above amount of indemnity as to Edicide System's neglect of obligation, and thereafter, on December 17, 1992, the Edicide Department paid for the obligation of 8,450,81,722 won with respect to Edicide.

B. On October 23, 1992, with respect to a parcel of land, not less than 287-1 orchard 25,686m2, and not less than 10m2 (hereinafter “the instant real property”), which is owned by the said Park Park Jong-do on October 23, 1992 (hereinafter “the instant real property”), the construction of a mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-backed 287-1m25,686m2 (hereinafter “the instant real property”). On May 3, 1994, the construction of a mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-backed 1, 1992, with respect to an obligation under the same terms and conditions as the instant real property, was completed by concluding a mortgage-mortgage-mortgage-mortgage-backed agreement with the maximum debt amount with respect to the instant real property as the secured debt amount.

C. On January 1, 2001, at the Daejeon District Court, the Daejeon District Court rendered an application for a voluntary auction based on the first right to collateral security (the above first right to collateral security) with respect to the instant real estate, and stated the claim amount as “2.2 billion won (the partial amount out of the note)” in the application for the auction. On January 18, 2001, the above auction court rendered a decision to permit the successful bid on seven parcels of the instant real estate on December 10, 2001, while proceeding with the auction procedure.

D. On April 16, 2002, from the above auction court around December 18, 1992 to April 16, 2002, the above auction court submitted a bond account statement containing 6,305,863,014 won, including interest of 4,105,863,014 won and interest of 4,105,863,014 won, calculated annually from December 18, 1992 to April 16, 2002; however, the above auction court did not recognize it for the reason that the creditor cannot extend the claim amount by submitting the bond account statement; on May 14, 2002, the court first made dividends of 2,437,196,63 won and the claim amount stated in the application form for auction to the mortgagee (the maximum amount of 8,000 won), and first made dividends to the creditor of the Republic of Korea (the pertinent 1,500,000 won, the remaining dividends to the creditor of the Republic of Korea (the pertinent 15305).

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

The plaintiff, as a matter of course, has the same effect as a demand for distribution, even if he did not demand a distribution, and even if he did not demand a distribution, he can receive a distribution in accordance with the order of such priority. The neglect of the obligation to request a request for auction only based on the first priority right with respect to the real estate of this case and the third priority right with respect to a request for auction or a demand for distribution has not been made. As such, the neglect of obligation and the amount exceeding 2.2 billion won out of the claim amount in the last claim statement submitted by the plaintiff should be preferentially distributed to the plaintiff by the third priority with the third priority right (the highest claim amount of 4.0 billion won) set prior to the statutory deadline for the claims of the defendants. Thus, the defendants who received the above amounts should return the dividends to the plaintiff as unjust enrichment.

(b) Markets:

In order to exercise a security right, in case where a creditor stated only a part of the secured claim in the application for auction as the claim amount in the application for auction, barring any other special circumstance, the applicant creditor shall be determined to the extent of the claim amount stated in the application amount and shall not expand the claim amount by submitting a claim statement. Thus, even if the applicant creditor had another secured claim not stated in the application for auction, the method of submitting a claim statement extending the claim amount cannot participate in the distribution of dividends exceeding the claim amount at the time of the application for auction among the amount of the secured claim. It is sufficient that the distribution court distributes only the claim amount at the time of the application for auction to the applicant creditor. Therefore, it is sufficient that the debtor submitted the claim statement which expanded the claim amount after stating only a part of the secured claim as the claim amount as the claim amount and submitting the claim statement which expanded the claim amount to the applicant creditor after the application for auction, without taking necessary measures such as "interauction auction until the auction date" until the auction date, and if dividends have been prepared and finalized based on the claim amount stated in the application for auction, it cannot be deemed that there is a junior creditor 97.

In this case, according to the facts acknowledged as above, although the neglect of the right to collateral security and the third-class collateral security with respect to the real estate in this case had the first-class collateral security and the third-class collateral security, it is sufficient that the maximum debt amount would be eight billion won or more, and the first-class collateral security (the first-class collateral security) was applied for a voluntary auction on or before January 2001, but there was no provision on interest in arrears with the claim amount stated only as "2.2 billion won". Thus, the neglect of the right to collateral and the amount to be distributed in the above auction procedure cannot be deemed to have been determined within the limit of the above 2.2 billion won and the claim amount cannot be expanded by the method of submitting a claim statement. It cannot be viewed that the neglect of the right and the third-class collateral security had the third-class collateral with respect to the real estate in this case, without taking necessary measures, such as the remaining part of the first-class collateral security or the third-class collateral security (the above third-class collateral security) and, even if so, the Defendants did not have received dividends within 96.

Therefore, the plaintiff's assertion is without merit without further determination.

3. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is dismissed in its entirety as it is without merit. It is so decided as per Disposition.

Judges Cho Jae-ho (Presiding Judge)