Whether, in an auction procedure for the exercise of a security right, the statement of claims submitted by a mortgagee on the date of distribution should be reflected in the distribution schedule (affirmative)

Even in an auction procedure for the enforcement of a security right, the distribution schedule shall be kept in the court three days prior to the date of distribution in order to allow each creditor and debtor to peruse. However, the auction court shall determine the distribution schedule by examining the interested parties present on the date of distribution and creditors demanding distribution, and when there exists an agreement between the interested parties present on the date of distribution and creditors demanding distribution, the distribution schedule shall be prepared pursuant to such agreement. In this context, the distribution schedule prepared and kept three days prior to the date of distribution shall refer to the original distribution schedule of the original meaning, namely, the original distribution schedule. The distribution schedule is finally prepared and finalized after examining the interested parties present on the date of distribution and the distribution creditors present on the date of distribution, and the distribution schedule is prepared and submitted after the original distribution schedule was made and offered for inspection by interested parties, the distribution schedule shall be formulated and finally prepared by examining the interested parties present on the date of distribution and the distribution creditors present on the date of distribution, or shall be adjusted relatively through a lawsuit for demanding a correction of the distribution schedule or a claim for restitution of unjust enrichment.

[1] Articles 586, 587, 588(2), 656, 657(2), and 658, and 728 of the Civil Procedure Act

Supreme Court Decision 96Da39479 delivered on July 10, 1998 (Gong1998Ha, 2059) Supreme Court Decision 98Da21946 delivered on January 26, 199 (Gong1999Sang, 349) Supreme Court Decision 99Da24911 delivered on September 8, 200 (Gong200Ha, 2068)

Korea Asset Management Corporation (Attorney Kim Yong-hoon et al., Counsel for the plaintiff-appellant)

Korea Housing and Commercial Bank Co., Ltd. and three others (Law Firm Jeong-jin et al., Counsel for the defendant-appellant)

1. Of the distribution schedule prepared on June 27, 200 by the above court with respect to the case of an application for auction of a real estate auction in Seoul District Court Order 9Yeng 14584, Seoul District Court Order 26,115,877 won against the plaintiff, 33,889,113 won, the amount of dividends to the plaintiff, 1,254,175 won for the branch offices in the Korea Housing and Commercial Bank in Seoul District Court Order 24,434 won, the amount of dividends to the defendant, 1,026,883 won for the branch offices in the Korea Housing and Commercial Bank in the Seoul District Court, 200,136 won, the amount of dividends to the defendant, 3,367,586 won for the defendant, 3,330 won, 1,312,237 won for the defendant Samsung Card Co., Ltd., Ltd., the amount of dividends to the defendant, 2694,569

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

The same shall apply to the order.

1. Basic facts

The following facts shall be acknowledged by the parties' respective statements and arguments of Nos. 1, 2, 7, 8-1 to 3, 11-9, and all of the arguments.

A. The real estate stated in the attached Form (hereinafter referred to as the "real estate of this case") originally was the real estate owned by the non-party, which was the real estate owned by the non-party, and the registration of the establishment of a neighboring mortgage established in the Korea Housing Bank, which was established as the non-party 1,700,000 won for the maximum debt amount on November 3, 1987, the debtor's name, the debtor's name, the debtor's name, and the non-party 2-mortgage bank as the non-party 1,70,000 won for the establishment of a mortgage was completed in the first order. On February 7, 1996, the registration of the establishment of a neighboring mortgage established in the Korea Housing Bank as the non-party 1,70,000 won for the secured debt was completed

B.On the other hand, on May 28, 1998 with respect to the real estate of this case, there were seven provisional attachment decisions and entry registrations as follows, including the provisional attachment decisions of Seoul District Court 98Kadan116576 on the application of the Korea Housing and Commercial Bank (Korea Housing and Commercial Bank) on May 28, 198:

(B) On May 198, 1998, on May 28, 1998, Korea Housing and Commercial Bank 9,310,641 Won, Seoul District Court 98Kadan11676 July 2, 1998, Jung-dong branch 9,648,350 Incheon District Court 98Kadan12437, July 10, 1998, Seoul District Bank 25,000 Seoul District Court 98Kadan297, Seoul District Court 97, 198, 290Kawon 97, 198, 17, 17, 168, 168, 198, 175Kadan198, 198, 30, 197, 195, 198, 194, 198, 25, 197, 198, 197, 1984, 1984, 197, 75,7, 194,

C. The Korea Housing and Commercial Bank applied for a voluntary auction of the instant real estate with the above 1 collateral security support of Seoul District Court around 9,14584. On June 20, 200, the Plaintiff at the auction court on June 27, 200, 30,000 won of the outstanding principal 18,51,225 won of the outstanding principal 7,600 won and interest 26,15,877 won, 360 won of the dividends distribution table, 365 won of the dividends distribution table, 116, 365 won of the dividends distribution table, 27, 365 won of the dividends distribution table, 47, 360 won of the dividends distribution table, 360 won of the dividends distribution table, 47, 165 won of the above dividends distribution table, 365 won of the new Housing and Commercial Bank, 47, 3605 won of the above dividends distribution table, 365 won of the above dividends.

2. Chief;

A. The Plaintiff’s legal representative asserts that, as the cause of the instant claim was the Plaintiff’s right to collateral security prior to the provisional attachment of the instant real estate, the amount of KRW 39,806,156 on the claim statement submitted by the Plaintiff as the right to collateral security shall be preferentially apportioned to the Defendants, who are the right to collateral security, within the scope of KRW 36,00,00,00. The auction court distributed the amount of claims on the claim statement submitted by the Plaintiff as the right to collateral security. As such, the amount of dividends to the Plaintiff was KRW 26,115,877, KRW 33,889,113; KRW 1,254,175 won for the other branch of the Korea Housing and Commercial Bank; KRW 24,434 won for the amount of dividends to the Plaintiff; KRW 1,026,83 won for the branch of the Defendant Korea Housing and Commercial Bank KRW 200,000; KRW 36,376,536,253636,25

B. Accordingly, the Defendants asserted that, even if they submitted a claim statement stating the amount of the secured debt in the auction procedure to exercise the right to collateral, the mortgagee may submit a new claim statement to correct the amount of the secured debt only until the distribution schedule is prepared, and the Plaintiff submitted a claim statement to add the amount of the secured debt to the amount of the secured debt after the establishment of the distribution schedule. As such, the Plaintiff cannot distribute the above card loan, etc., and further, the Plaintiff’s right to collateral security is not a comprehensive collateral security but limited to the principal and interest of the loan executed at the time of establishment of the secured claim, and thus, it cannot be distributed in preference to the Defendants as a collateral holder of the above card loan, etc.

3. Determination

(a) Whether the secondary statement of claims is appropriate;

(1) In an auction procedure to enforce a security interest, a mortgagee may, as a matter of course, receive a distribution according to the order within the scope of the maximum debt amount stated on the registry, even if he did not demand a distribution. Thus, the said mortgagee cannot be excluded from the distribution because he did not submit the claim statement, and even if the mortgagee submitted the claim statement before the auction date, he/she may submit again the claim statement to revise the amount of the secured debt until the distribution schedule is prepared. Unless there are special circumstances, the auction court shall calculate the amount of the claim to be distributed to the mortgagee within the scope of the maximum debt amount by means of the claim statement and evidence, etc. submitted until the preparation of the distribution schedule, unless there are special circumstances (see Supreme Court Decision 98Da21946, Jan. 26, 19

(2)With respect to the distribution procedure for compulsory execution against movables, the court shall demand each obligee to submit an invoice of principal, interest, expenses and other incidental claims within seven days (Article 586 of the Civil Procedure Act), and after the expiration of the period under Article 586, the court shall prepare a distribution schedule (Article 587 (1) of the Civil Procedure Act), and after the expiration of the period under Article 586, the creditor's claims that have not complied with the period under Article 587 (1) shall be calculated in accordance with the purport of a written demand for distribution and a written report thereof, and shall not supplement the amount of claims in such a case (the latter part of Article 588 (2) of the same Act), and the distribution schedule shall be kept in the court at least three days prior to the date of distribution for inspection by each obligee and debtor (Article 588 (2) of the same Act), but at least three days prior to the date of distribution, the creditor may not supplement his amount of claims, but Articles 586 and 587 of the Civil Procedure Act shall not apply mutatis mutandis to the auction procedure for the exercise of security.

(3) Even in an auction procedure to enforce a security interest, the distribution schedule shall be kept in the court three days prior to the date of distribution (Articles 728, 658, and 58(2) of the same Act). However, the auction court shall determine the distribution schedule by examining the interested parties present on the date of distribution and the creditors demanding distribution (Articles 728 and 656 of the same Act). When there is an agreement between the interested parties present on the date of distribution and the creditors demanding distribution, the distribution schedule must be prepared (Articles 728 and 657(2) of the same Act). Accordingly, the distribution schedule prepared and kept three days prior to the date of distribution refers to the pre-stage stage of the distribution schedule within the original meaning of the distribution schedule, namely, the original distribution schedule, the original distribution schedule is finally prepared and finalized by examining the interested parties present on the date of distribution and the distribution creditors present on the date of distribution, and where the interested parties present on the date of distribution and the creditors present on the date of distribution are revised or additionally submitted by the court through adjustment or correction of the distribution schedule.

(4) Accordingly, the defendants' assertion that the statement of claims submitted by the plaintiff on the date of distribution should not be reflected in the distribution schedule is without merit.

B. Scope of secured claims

(1) Facts of recognition

The following facts are acknowledged according to the whole purport of Gap evidence 5, 6, 9, and 10, and the whole purport of oral argument.

(A) On February 6, 1996, as to the scope of the secured claim in the instant mortgage contract between Song-ro, Dong-nam Bank, in the form of a printed letter stating "any incidental obligations such as bill lending, bill discount, certificate lending, payment guarantee (including bond guarantee), transaction of sold bond, mutual installment transaction, securities lending, foreign exchange and other credit transaction, guaranteed liability, interest liability, obligation on bill or check, compensation for delay, debtor or lender's burden, and all other incidental obligations related to credit transaction, such as insurance premium, etc."

(b)Song-ro had opened a credit card at Dong-nam Bank on September 4, 1997, and continued to have been paid KRW 9,000,000 on September 30, 1997, with the credit card amounting to KRW 10,834,425 on September 31, 1999, with the credit card amounting to KRW 9,00,000 on September 30, 1997, and with the credit card loan agreement having been given and used KRW 9,00,00 on September 30, 1998, and the loan was not repaid after the expiration date of the loan, as originally agreed, at KRW 10,834,425 as of March 31, 199; the credit card amount to KRW 261,897, provisional payment amount to KRW 19,950 on June 27, 200.

(2) Determination:

(a)In the event that the debtor establishes a collateral on real estate to secure all obligations arising from credit transactions at present and in the future with the bank at the time of entering into the collateral contract with the bank, the statement will establish a collateral on real estate to secure all obligations regardless of the type of obligations or the time of establishment, and even if the contract takes the form of a general transaction agreement printed in the same text, it is a disposal document, and thus the existence and content of the expression of intent should be recognized as stated in the contract, unless there are special circumstances.

(b) Even if ASEAN Bank set a collateral of 30,000,000 won as the maximum debt amount, while lending 30,000,000 won to Song-ro, it is difficult to view that the rate between the loan amount and the maximum debt amount as above was by itself as the intent to secure only the above loan amount and the loan amount, and there is no other evidence to acknowledge otherwise.

(c) Correction of a distribution schedule;

Therefore, among the distribution schedule prepared by the auction court on June 27, 200 with respect to the instant case of voluntary auction application, the amount of dividends against the Defendants shall be corrected to the amount that would have been distributed to the Defendants if all of the secured claims on the secondary statement of claims were distributed to the Plaintiff within the scope of the maximum debt amount. The amount of dividends against the Plaintiff shall be adjusted to KRW 26,115,877,389,113; KRW 26,877; KRW 33,889,1113; KRW 1,254,175; KRW 24,434; KRW 1,026,883; KRW 20,136; KRW 3,367,586; KRW 65,30; and KRW 1,312,375,256; and KRW 265,475,96; KRW 256,57; KRW 269,57; and KRW 2065,56,96,5.7.25.

4. Conclusion

Therefore, the plaintiff's claim against the defendants is justified and it is so decided as per Disposition with the assent of all.