[1] In an auction procedure for exercising the right to collateral security, whether an applicant creditor who indicated a specific secured claim as a claim claim in the application for an auction may assert the claim by changing the claim to another claim that can be the secured claim of the right to collateral security within the scope of the amount of the claim in a lawsuit of demurrer against distribution (affirmative

[2] The case holding that in a case where Gap bank filed a lawsuit of demurrer against distribution with regard to the above real estate when the distribution schedule was prepared that distributes all the amount to be distributed to Gap bank in the auction procedure for the execution of the right to collateral security to Eul bank after the registration of the establishment of the collateral security (hereinafter referred to as the "mortgage") was completed on the part of Eul bank's comprehensive collateral security (hereinafter referred to as the "mortgage")'s collateral security (hereinafter referred to as the "mortgage"), Eul bank may claim the existence of the loan claim acquired from Gap bank as the secured debt of the right to collateral security (hereinafter referred to as the "right to collateral security").

[1] In an auction procedure for exercising a right to collateral security, even if an applicant obligee stated the specific secured claim in the application for the auction and indicated it as a claim claim, the obligee may modify the claim claim by adding it to the claim claim or exchanging the original claim with other claims within the scope of the original claim amount stated in the application. However, Article 192 of the Civil Execution Rule provides that “the indication of security right and secured claim” shall be stated in the application for auction for exercising a right to collateral, but Article 264 of the Civil Execution Act only provides that “documents proving the existence of security right” shall be submitted at the time of the above application for auction, and the existence of the actual secured claim shall not be required to prove the existence of the secured claim, and the existence of the secured claim may be proved by the obligee in the procedure, such as raising an objection against the commencement of auction procedure raised by the obligor or owner, or in the lawsuit for confirmation of existence of the secured claim. Thus, in the auction procedure for exercising the right to collateral security right, the obligee who stated the secured claim in the application for auction can claim within the scope of the claim.

[2] The case holding that in a case where: (a) after the registration of establishment of a mortgage on the real estate owned by the bank Gap was completed with regard to Eul as the comprehensive collateral obligation, Eul bank transferred the status of creditor under the basic contract for the registration of the right to collateral security and the agreement on the right to collateral security to collateral security, and completed the registration of establishment of the right to collateral security in its name; and (b) the distribution schedule was prepared with the contents that distribute all the amount to be actually distributed to Eul during the auction procedure for the execution of the right to collateral security, the Credit Guarantee Fund, a person holding the right to collateral security, filed a lawsuit of demurrer to the distribution, the court below held that, although there was no claim for loans against Byung as the claim for the registration of the right to collateral security, the parties may assert

[1] Articles 154 and 264 of the Civil Execution Act, Article 192 of the Civil Execution Rule / [2] Articles 154 and 264 of the Civil Execution Act, Article 192 of the Civil Execution Rule

[1] Supreme Court Decision 96Da39479 delivered on July 10, 1998 (Gong1998Ha, 2059), Supreme Court Decision 2000Ma5110 Delivered on October 25, 200 (Gong2000Ha, 2387), Supreme Court Decision 2008Da29697 Delivered on September 11, 2008 (Gong2008Ha, 1372)

(Jurisdiction: Branch of the Credit Guarantee Fund) (Law Firm Mpool, Attorney Jeon Soo-tae, Counsel for defendant-appellant)

Defendant (Attorney Lee Jae-soo, Counsel for defendant-appellee)

Daegu District Court Decision 201Gahap219 decided January 12, 2012

April 18, 2012

1. The plaintiff's appeal and the defendant's appeal are all dismissed.

2. The costs of appeal shall be borne by each party.

1. The plaintiff's purport and purport of appeal

The judgment of the court of first instance is modified as follows. With respect to the case of the real estate auction (hereinafter “instant auction”) by the Daegu District Court Branch Branch of 2010ta-499, the amount of dividends to the defendant among the distribution schedule prepared on January 25, 2011, the amount of dividends of 146,183,291 shall be deleted, and all of them shall be distributed to the plaintiff, and the distribution schedule shall be corrected.

2. The defendant's purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and all of the plaintiff's claims corresponding to the revocation are dismissed.

1. Basic facts

A. The Plaintiff is Nonparty 1’s owner of the Daegu District Court’s Port Branch, 2010 Mata4999, which was awarded a successful bid in the auction for real estate rent, and is the mortgagee of a provisional attachment on the said real estate, with regard to 16,585 square meters of forest land (number 1 omitted), 16,585 square meters of forest land (number 2 omitted), 7,537 square meters of forest land (number 3 omitted), 7,537 square meters of forest land (number 3 omitted), and 13,091 square meters of forest land (number 4 omitted) of the said private Ri (hereinafter “instant auction real estate”). The Defendant is the mortgagee of a collective security on the said real estate.

B. On June 29, 2007, the non-party 2 mutual savings bank (hereinafter "non-party 2 mutual savings bank") changed its trade name into the Ors Savings Bank on February 8, 201; hereinafter "non-party 2 (non-party 1's father and joint surety) and the non-party 1 and joint surety who are the debtor and joint surety, the non-party 1 and joint surety, the co-mortgage 1's auction real estate, the joint collateral security loan, the non-party 1 and the non-party 1, the non-party 2, the non-party 2, the new ○○○○○○○○ 201, the second 201, and the non-party 2, the non-party 2, the non-party 2, the joint collateral loan interest rate of 10% on the non-party 2's loan at an annual interest rate of 10% on the non-party 200, the non-party 2, the non-party 2000, the general collateral loan agreement.

C. Meanwhile, on September 17, 2007 based on the claim for reimbursement against Nonparty 1, the Plaintiff received the Seoul Western District Court Decision 2007Kadan8484 on the claim amounting to 161,50,000 provisional attachment for the real estate owned by Nonparty 1, and the provisional attachment registration based thereon was completed on September 27, 2007.

D. After that, the right to collateral security and the provisional seizure of the non-party savings bank established with respect to ○○○○○○○○○○○○○○○ 203, 201, from among the real estate jointly secured in this case, was revoked on March 25, 2009 due to voluntary auction. The right to collateral security of the non-party savings bank established with respect to 115 of the first floor of △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, 5 omitted) was revoked on August 24, 2009.

E. On June 7, 2010, the non-party savings bank (a contracting transferor and a transferee of the right to collateral security) entered into a contract with the defendant (a contracting transferee and a transferee of the right to collateral security) and the non-party 2 (a debtor) under the basic contract for the registration of the right to collateral security and the contract for the establishment of the right to collateral security (hereinafter “instant contract for the transfer of collateral security”). Accordingly, on June 10, 2010, the registration of transfer of the instant auction real estate was completed based on the transfer of the right to collateral security under the name of the defendant. The main contents of the instant contract for the transfer of collateral security are as follows.

The non-party savings bank (hereinafter referred to as "A") prior to the transfer of the status of creditor under the basic contract of the right to collateral security and the contract to collateral security (hereinafter referred to as "right to collateral security") contained in the main text shall enter into a mortgage agreement with the debtor on June 29, 2007 with the non-party 2 and the non-party 180,000 won (180,000) with the maximum debt amount, and transfer all of the status of creditor under the basic contract as to the right to collateral security (hereinafter referred to as "B"), which completed the registration of creation under Article 1063 of the title to the Daegu District Court received by the Ulsan District Court in 2007, receipt of the registration of the right to collateral security (hereinafter referred to as "right to collateral security") to the defendant (hereinafter referred to as "B"): Article 3 (Cancellation, Alteration, Additional) shall not cancel or modify the basic contract without the consent of Eul, and the debtor and the debtor shall not consent to any amendment or modification of the terms and conditions of the contract as mentioned in Article 1).

F. On June 16, 2010 upon the registration of the instant mortgage, the Defendant filed an application for voluntary auction of the instant auction real estate on June 16, 2010, the Defendant stated the Defendant’s claim amount of KRW 60,000,000 (one hundred and twenty percent per annum on May 31, 2010, and twelve percent per annum on June 1, 2010) as the loans of KRW 120,000 (one hundred and seventy percent per annum on June 10, 2010, and one hundred and eighty percent per annum) as loans of KRW 180,00,000 (one hundred and seventy percent per annum on June 10, 201), and the auction court, upon the successful bid of the instant auction real estate at the auction procedure, filed a lawsuit of demurrer to the Defendant on the distribution date of KRW 180,00,00,000 (hereinafter “the amount of the instant loan claim”). The auction court prepared the distribution schedule within the distribution date of KRW 1814,15,16.

[Reasons for Recognition] Evidence Nos. 1 through 6 (including paper numbers), Eul's Evidence No. 1, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

(1) In light of the fact that the registration of the right to collateral security regarding No. 115 of the first floor of △△△△△△△△△△△△, which was the most valuable property among the instant joint collateral real estate, was cancelled on August 24, 2009, the secured debt of the instant registration of the right to collateral security, such as the instant loan, is presumed to have been fully repaid, and thus, the instant contract on the transfer of collateral security with respect to the registration of the right to collateral security, which did not have secured any secured debt, is null and void in violation

(2) In addition, the instant contract on the registration of collateral security was made with the aim of excluding the distribution of dividends to other creditors in the instant auction procedure and evading obligations. It constitutes an anti-social legal act stipulated in Article 103 of the Civil Act or a false declaration of agreement stipulated in Article 108 of the Civil Act and thus invalid.

(3) The Defendant’s claim for the instant loan, which was indicated as the secured claim in the registration of the instant right to collateral security, is nonexistent in the application for the auction, and the Defendant did not change the secured claim in the account statement, etc. Accordingly, even if the instant loan claim, which the Defendant acquired from the Nonparty Savings Bank, remains, the Defendant cannot claim the instant loan claim as the secured claim in the lawsuit of demurrer to the distribution of the instant case against the distribution.

B. Defendant

In a lawsuit of demurrer against distribution, the mortgagee who filed a request for auction can also assert the grounds arising after the date of distribution. As such, the defendant may also alter the claim in the lawsuit of demurrer against distribution. The defendant shall pay 70,000,000 won directly to the non-party savings bank after the non-party 2 was fully transferred the creditor status under the basic contract, the registration of the right to collateral security and the right to loan of this case, which are the secured claim, possessed by the non-party 2 through the non-party savings bank, as the contract of collateral transfer in this case was fully transferred from the non-party savings bank, and the non-party 2 paid 70,000,000 won to the non-party 2 on May 24, 2010, 2000, 2000,000 won through the Newhee on June 28, 2010, 19,000 won, 54,000 won, 00,000 won to the non-party 1.

3. Determination

A. Whether the transfer contract of the right to collateral security in this case is invalid

The Plaintiff asserts that the agreement on the transfer of the right to collateral security is against the appendant nature as it is related to the registration of the right to collateral security on which the obligation has already been extinguished, and that the registration of the right to collateral security on the first floor of △△△△△△△△△△△, among the joint collateral real estate in this case, was cancelled on August 24, 2009, as seen earlier. According to the above quoted evidence, the non-party savings bank can be deemed to have collected the amount of loans from the Defendant’s funds immediately after the transfer of the right to collateral security and the right to collateral security, but the payment of the amount of loans can be deemed to have been made for the transfer of the right to collateral security and the right to collateral security. The mere fact that the non-party savings bank recovered the amount of loans, which is the right to collateral security, cannot be deemed to have been extinguished by repayment, or that the amount of loans and the right to collateral security was paid for the non-party bank’s right to collateral security in lieu of false agreement.

Therefore, this part of the plaintiff's assertion cannot be accepted.

B. Existence and modification of the claim of the defendant

First, in full view of the statements in Gap evidence 5-1, 4, and 5 and the testimony of non-party 1 as witness of the court of first instance as to the existence of the loan claim of this case stated by the defendant in the application for auction, the defendant asserted in the application for auction of this case the loan claim of this case against non-party 2 with the claim claim of this case and submitted the certificate of loan Nos. 4, 5, but the non-party 2 borrowed KRW 180,00,000 from the actual defendant. There is no fact that non-party 2 actually borrowed the loan claim of this case from the defendant, and each of the above loan certificates can be acknowledged as a fact that the non-party 1, the father of the non-party 2, was voluntarily prepared upon the defendant's request for the application for auction of

Accordingly, the Defendant asserts to the effect that the claim claim amount is changed to the claim amount of the instant loan claim that was acquired from the non-party savings bank, and the Plaintiff is not able to change the claim amount at the stage of a lawsuit of demurrer against distribution.

Therefore, in an auction procedure to enforce the right to collateral security, even if an applicant obligee stated the specific secured claim in the application for the auction, and indicated it as a claim claim, the obligee may alter the claim claim by adding the claim claim in case where other claims exist as the secured claim of the relevant right to collateral security, or exchanging the original claim with other claims (see, e.g., Supreme Court Decision 96Da39479, Jul. 10, 1998). However, Article 192 of the Civil Execution Rule provides that “the indication of the security right and the secured claim” shall be stated in the application for auction to enforce the right to collateral under Article 192 of the Civil Execution Rule, but Article 264 of the Civil Execution Act does not require the existence of the secured claim to be proved, and the existence of the actual secured claim may be rejected from the application for auction to the extent of the amount indicated in the application for the right to collateral security (see, e.g., Supreme Court Decision 200Da5780, Feb. 19, 2005).

Therefore, in a lawsuit of demurrer against the instant distribution, the Defendant may assert the existence of the instant loan claim that was taken over from the non-party savings bank as the secured claim for the registration of the instant collateral security, and thus, I would like to examine the existence of the said claim asserted by the Defendant.

C. Amount of secured debt registered as the instant right to collateral security

The registration of this case was made on July 2, 200 120, 200, 200, 200, 111% of loan interest rate of 20,000 x 25% of loan interest rate of 10,000 x 25% of loan 20, 30,000,000 won x 10,000 won ; 20,000 won x 10,000 won ; 30,000 won x 20,000 won ; 4.0,000 won x 6.0,00 won x 10,000 won x 10,000 won x 20,00 won ; 6.0,00 won x 10,000 won x 10,000 won x 6.0,000 won x 206.

On the other hand, the defendant alleged that the amount of KRW 70 million paid directly to the non-party savings bank and KRW 54,000,000 paid to the non-party 2 shall be included in the secured debt of the registration of the right to collateral security. Thus, according to the above quoted evidence and the whole purport of the pleading, the defendant can be acknowledged that the above amount was paid to the non-party savings bank or the non-party 2. However, the above amount was paid to the non-party savings bank as a consideration for the transfer of loan claims and the right to collateral security, and the defendant cannot be deemed to have a claim equivalent to the above amount, separately from the loan claims that the non-party 2, the debtor bank acquired from the non-party savings bank, and on June 28, 2010, KRW 20,000 and KRW 19,000,0000 paid to the non-party 2, June 21, 2010, it cannot be accepted as the defendant's assertion.

D. Sub-determination

Therefore, since the portion of the distribution schedule of this case distributed to the Defendant in excess of KRW 132,292,602 in excess of the above secured claim is unlawful, the distribution schedule should be revised by rectifying the dividend amount of KRW 146,183,291 to KRW 132,292,602, and the difference of KRW 13,890,689 (===146,183,291 - 132,292,602) is distributed to the Plaintiff.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is just in conclusion, the plaintiff and the defendant's appeal are dismissed as they are without merit. It is so decided as per Disposition.

Judges Hong-Myeon (Presiding Judge)