[1] Where a creditor who has applied for a compulsory auction of real estate obtains a right to collateral security for the same auction object as security for a claim for which a compulsory auction of real estate has been registered after the registration of entry into an auction, whether to separately demand a distribution in the distribution procedure (affirmative)

[2] Whether the demand for distribution made by the person holding the right to a provisional seizure of the right to collateral security may be deemed a demand for distribution by the mortgagee (negative)

[1] Where a creditor who has applied for a compulsory auction on an immovable property based on an executory exemplification of a promissory note authentic, obtains a right to demand a distribution based on the right to demand a distribution based on the right to demand a distribution based on the right to demand a distribution by the date of the successful bid, even if the secured claim on the right to request a distribution is identical to the secured claim on the same real property as the secured claim after registration

[2] Even if the person having the right to demand a distribution prior to the date of the successful bid, the right to demand a distribution of the claims against the right to collateral security shall not be deemed a demand

[1] Article 605 of the Civil Procedure Act: / [2] Article 605 of the Civil Procedure Act

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

Plaintiff (Attorney Lee Sung-sung et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney Kim-hwan et al., Counsel for the defendant-appellant)

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

Of the distribution schedule prepared by the same court on January 24, 1997, with respect to the compulsory auction of real estate (No. 95 Tag District Court) No. 22948, Daegu District Court, the amount of 66,612,250 won against the plaintiff shall be KRW 324,62,574, the amount of dividends against the plaintiff, KRW 200,000,000, and KRW 58,010,324 of the amount of dividends against the defendant 1 shall be corrected, respectively.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of the pleading in Gap evidence Nos. 1, 2, 3-1 through 6, 8, 10, 14 through 20, 22, 4-1, 5, 1-3 and 4.

A. On July 24, 1995, the Plaintiff filed an application with the Daegu District Court for compulsory sale of real estate on the authentic copy of the said promissory note with a claim amounting to KRW 343,375,00,00 based on the authentic copy of the notarial note with the executory power of No. 1703, 1995, the Plaintiff filed an application with the said non-party company for compulsory sale of real estate on August 1, 1995, for a claim amounting to KRW 343,375,00 based on the authentic copy of the notarial note with the power of No. 1703,375,000.

B. Accordingly, on July 25, 1995, the above court commenced a compulsory auction procedure for real estate under 95 Mata-22948, and on the same day, a compulsory auction application was filed against the plaintiff and the above auction decision for the reason of the above auction decision under 25836 on the same day.

C. The establishment registration of a mortgage in the name of the Plaintiff was completed as of August 1, 1995, as of August 1, 26256, with the maximum debt amount of KRW 343,375,00,000, and as of July 31 of the same year, the establishment registration of a mortgage in the name of the Plaintiff was completed as of July 31 of the same year, and as of August 5 of the same year, the amount of KRW 200,000,000, which was received on August 5 of the same year, the debtor company, the above non-party company, and the above non-party company, as of August 4 of the same year, the establishment registration of a mortgage was completed on August 2651 of the same year, and as of August 2651 of the same year, the maximum debt amount of KRW 810,00,000,0000, the debtor company, the non-party company, and the non-party company of the same year.

D. During the compulsory auction procedure of the above 95taB2948, Defendant 2 among the plaintiff and the defendant who are the mortgagee of the instant real estate, around August 17, 1995; and around July 22, 1996, Defendant 1 reported the right as a collateral security right; and the amount of credit of the plaintiff and the defendant reported during the above auction procedure was KRW 343,375,00,000, Defendant 1's claim was KRW 205,273,970, Defendant 2's claim was KRW 810,000,000 based on an executory deed; on the other hand, the non-party 2 corporation's claim was KRW 320,000,000 based on the non-party 2 corporation's executory deed; on March 6, 1996, the Plaintiff bank seized the Plaintiff's above collateral security right as a collateral security right holder; on July 7, 1997.

E. Following the above auction procedure, the real estate of this case was awarded KRW 330,00,10 on November 7, 1996. After the auction date, the plaintiff presented a written opinion on the opinion of the above court that it was identical to the claim filed and the claim secured by the plaintiff's above right to collateral security after January 1, 1997. The above court opened a distribution date on January 24, 1997, and submitted the distribution date of the above auction price and interest interest, KRW 976,416, and KRW 540,958, KRW 331,517,474, KRW 6,894,90, KRW 324,622,574, KRW 100, KRW 200, KRW 2000, KRW 2600, KRW 300, KRW 2500, KRW 260, KRW 2065, KRW 360,000.

2. Judgment on the plaintiff's claim

As the cause of the instant claim, the Plaintiff is the creditor requesting auction and the creditor entitled to receive dividends as a matter of course even if he did not separately make a demand for distribution as the mortgagee, so it cannot be excluded from the distribution right holder on the ground that the Plaintiff did not make a demand for distribution as the mortgagee. Meanwhile, as long as Non-Party 1 Bank, which is the Plaintiff’s creditor, reported the right and demand for distribution to the above court, the Plaintiff cannot be said to have not made a report on the demand for distribution or the right, so the amount of dividends against

On the other hand, the plaintiff shall be a creditor who has the right to preferential payment as a creditor who has the right to demand a compulsory auction, or the plaintiff's above right to demand a distribution, unlike the right to demand a distribution established after the registration of the above right to demand a compulsory auction, and unlike the right to demand a distribution established after the registration of the above right to demand a distribution. Meanwhile, since the plaintiff's claim filed by the plaintiff and the claims secured by the plaintiff are identical to the claims secured by the plaintiff's right to demand a distribution, the above written opinion is submitted after the successful bid date, and it is difficult to regard the above written opinion as a right to demand a distribution of the plaintiff's claim as a right to demand a distribution, and it cannot be viewed as a plaintiff's demand for a distribution of the above bank as a right to demand a distribution as a right to demand a distribution. In addition, where the plaintiff's real estate has again been established a right to demand a distribution after obtaining an executory document under the name of the debtor in order to secure the same claim, the creditor's claim in a compulsory auction procedure based on a No.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the costs of lawsuit are assessed against the plaintiff who has lost. It is so decided as per Disposition.

Judges Dok-si (Presiding Judge)