[1] Whether an applicant creditor may extend the amount claimed in an auction procedure for exercising a security right (negative), and in cases where the applicant creditor has indicated an incidental claim, such as interest, as a claim for auction in the application for auction, whether the amount claimed may be expanded by a method of increasing the incidental claim in accordance with the statement of claim (affirmative)

[2] The period during which the extension of the incidental claim is allowed (=before the date of adjudication)

[1] Where an applicant creditor has filed an application for auction with only a part of the secured claim as the claim amount, barring any other special circumstances, the claim amount of the applicant creditor shall be determined to the extent of the claim amount stated in the application for auction, and thereafter the claim amount shall not be expanded by the method such as expanding the claim amount in the statement of claim and submitting it to the applicant creditor. However, such legal principle does not prevent the applicant creditor from extending the claim amount by the method of increasing the incidental claim amount in accordance with the statement of claim in the case where the applicant creditor has indicated the claim amount

[2] Each creditor, including the applicant creditor, shall submit a claim statement by the auction date, and if the claim statement is not submitted by the auction date, it shall be calculated based on the documents and evidence recorded in the execution records, such as a request for auction, and if it is not recognized as a result, it shall be distributed by calculating the claims, and the supplement of the claims shall be denied. In full view of the purport of the provisions of the Civil Procedure Act, where the applicant creditor indicated the incidental claims such as interest, etc. in the auction procedure for the execution of a security right, and where the amount of claims is expanded by the method of increasing the incidental claims by the method of the claim statement later, such expansion shall be made by the auction date prior to the

[1] Articles 601 subparag. 3 and 728 of the Civil Procedure Act, Article 204 of the Rules on Civil Procedure / [2] Articles 587(2), 653, and 728 of the Civil Procedure Act

[1] Supreme Court Decision 92Da50270 delivered on January 25, 1994 (Gong1994Sang, 792), Supreme Court Decision 96Da39479 delivered on July 10, 1998 (Gong1998Ha, 2059), Supreme Court Decision 98Da46938 delivered on March 23, 199 (Gong199Sang, 733)

National Agricultural Cooperative Federation

Kimpo Ginseng Co., Ltd. (Law Firm Hanpo-dong Office, Attorneys Yu-hee et al., Counsel for the plaintiff-appellant)

Daejeon District Court Decision 98Na6389 delivered on January 14, 1999

The judgment below is reversed. The case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. Summary of the judgment below

A. In full view of the admitted evidence, the lower court acknowledged the following facts.

(1) On July 15, 1993, on the real estate indicated in the attachment list of the lower judgment, which was owned by Nonparty 1 (hereinafter referred to as “the instant real estate”), the establishment registration of a collateral against the debtor, who was granted support from the Daejeon District Court, was completed on July 15, 1993, at the time of the receipt of the support of the Daejeon District Court. The debtor was changed to the maximum debt amount of KRW 60 million on October 25, 1995.

(2) On October 15, 1997 at the request of the plaintiff, who is a mortgagee, the court rendered a decision of commencing an auction of real estate in relation to the instant real estate at around 97ta, 6908, and conducted an auction procedure on April 24, 1998, which was the highest bidder on April 24, 1998, decided to grant a successful bid to the non-party 2 and the non-party 3 on June 10 of the same year.

(3) Upon filing a request for auction of this case on October 15, 1997, the Plaintiff stated as follows: "Japan 347,321,072 won" and "a claim for a loan which the creditor has against the debtor on July 15, 1993," and in the purport of the application, "I request a decision to commence voluntary auction of real estate stated in the separate sheet to appropriate for the repayment of the above claim which the creditor has against the debtor," and as the reason for the application, the Plaintiff filed a request for auction on September 22, 1997, stating that "the amount of the above claim shall be 30 million won which is the total principal of the above loan claim against the plaintiff and interest thereon until September 22, 1997, the Plaintiff submitted a request for auction stating that "the principal of the claim shall be 30 million won, 300 million won, 394, 974, 97, 99, 97, 199.

(4) On June 10, 1997, the above distribution court distributed 410,476 won, which was the amount to be distributed on the date of distribution of 417,141,476 won deducted the execution expenses, and distributed only 347,321,072 won as stated in the indication of the claim for auction, to the Plaintiff, who is the creditor requesting auction, as the creditor requesting auction, and prepared a distribution schedule that distributes the remainder of 63,15,704 won to the Defendant, the junior mortgagee, a junior mortgagee.

(5) The Plaintiff, upon raising an objection against the Defendant to the amount of KRW 47,638,355 (the claimed amount entered in the claim statement submitted by the Plaintiff, KRW 394,959,427 - the amount distributed to the Plaintiff) out of the amount distributed to the Defendant, the said court suspended the distribution of the disputed portion and suspended the distribution of the said portion, and made the distribution in accordance with the distribution schedule for the said portion without objection.

B. The judgment of the court below

Based on the above facts, where an applicant creditor entered only a part of the secured claim in the auction application for the execution of a security right as the claimed amount in the auction application, barring any special circumstance, the amount to be distributed in the auction procedure shall not be determined within the limit of the stated claim amount, and the applicant creditor shall not be allowed to expand the claim amount by the method of submitting the statement of claim. The same applies to the case where the applicant creditor claims the interest claim after the successful bid date. However, in the case where the claim for interest was already stated in the auction application submitted before the successful bid date, it is reasonable to additionally distribute the interest until the date of distribution. However, in this case, the plaintiff stated the total amount of the secured claim and the interest and interest interest interest interest for up to September 22, 197, which is the date of the request for auction, as the requested amount, and expanded the claim amount to the plaintiff by the method of submitting the statement of claim, 361, 375, 47, 57, 379, 47, 57, 3947, 57

2. Judgment of the Supreme Court

A. The purport of Article 601 subparag. 3 of the Civil Procedure Act and Article 204 subparag. 2 and subparag. 4 of the Rules of Civil Procedure, which apply mutatis mutandis to the auction procedure to exercise a security right pursuant to Article 728 of the Civil Procedure Act, is to specify the secured debt which is the cause of the request for auction to the applicant creditor at the stage of the request for auction. In addition, since the purpose is to determine the amount of the claims of the applicant creditor within the limit of the amount indicated in the application form, the amount of claims filed by the applicant creditor shall be determined within the limit of the amount of claims indicated in the application form for auction, and the amount of claims shall not be expanded by the method such as expanding the amount of claims by the applicant creditor to submit the amount of claims in the statement of claims (see, e.g., Supreme Court Decisions 92Da50270, Jan. 25, 1994; 95Da22788, Feb. 28, 1997; 390Da396969, Jul. 396, 1996

However, such a legal doctrine does not purport to prevent an applicant creditor from extending the amount of claims by means of increasing the amount of claims based on the statement of claims in the event that the applicant creditor has indicated an incidental claim, such as interest, as a claim for auction in the application for auction. The judgment of the court below to the same effect is justifiable.

B. Furthermore, Article 653(1) and Article 587(2) of the Civil Procedure Act, which applies mutatis mutandis to the auction procedure to exercise a security right pursuant to Article 728 of the same Act, applies mutatis mutandis to the period during which the extension of the incidental claim is permitted, shall submit a claim statement by the auction date to each creditor, including the applicant creditor, and if the claim statement is not submitted by the auction date, the creditor including the applicant creditor shall calculate the claim in the execution record, such as a request for auction, and distribute it by the documents and evidence in the execution record, and shall not be allowed to supplement the claims which are not recognized by the auction date. In light of the purport of these provisions, in the auction procedure to exercise a security right, where the applicant creditor displayed the incidental claim, such as interest, etc., but expands the claim amount by the method of increasing it by the claim statement later, such expansion shall be made by the auction date at the latest when the claim statement is submitted, and thereafter, it shall not be allowed.

According to the facts established by the court below, the plaintiff filed a request for auction by stating only KRW 347,321,071, which is the sum of principal and interest accrued until September 2, 1997, among the amount of the secured debt at the time of the request for auction, as the claimed amount, and only KRW 347,321,071, which is the sum of the principal and interest accrued until September 22, 1997. On May 29, 1998, the successful bid date, the plaintiff submitted a claim statement to increase the sum of the principal and interest accrued until the date of distribution to KRW 393,959,427, which is the sum of the principal and interest accrued until the date of the successful bid. Thus, the extension of the

Nevertheless, the lower court determined that the portion of interest in arrears extended by the bond account statement (47,638,355 won) should be additionally distributed to the remaining Plaintiff as the extension of the claim amount of this case is effective, and accepted the Plaintiff’s claim seeking correction of the distribution schedule of this case. In so doing, the lower court erred by misapprehending the legal doctrine on the time of extension of the incidental claim in the auction procedure for the enforcement of the security interest. The grounds of appeal pointing this out are with merit.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all Justices who reviewed the appeal.

Justices Lee Yong-woo (Presiding Justice)