[1] The case holding that the mortgagee who had been disadvantaged in simultaneous dividends as a result of the auction's preferential repayment from the wage creditors can receive preferential dividends from other real estate owned by the employer in the auction procedure for other real estate owned by the employer on behalf of the wage creditors

[2] Where part of the number of real estate owned by the employer is sold first, and the mortgagee who was disadvantaged in simultaneous dividends as a result of the auction proceeds received preferential repayment from the wage creditors can receive preferential dividends on behalf of the wage creditors in the auction procedure for other real estate owned by the employer without any separate demand for dividends

[3] The method of calculating the amount of money received as a dividend by exercising the subrogation right from each auction price in case where there are several auction proceeds from other real estate owned by the employer by the mortgagee subrogated to the creditor of senior wage

[1] The case holding that the mortgagee who was disadvantaged in simultaneous dividends as a result of the auction's preferential repayment of part of the number of real estate owned by the employer can receive preferential dividends in the auction procedure for other real estate owned by the employer on behalf of the wage creditors

[2] Where a wage creditor does not make any demand for distribution at all in an auction case concerning other property of the employer or does not have a position to participate in the distribution without the necessity for a demand for distribution by conducting a provisional seizure for preserving a wage claim, etc., if the mortgagee who subrogated the wage creditor has no choice but to make a demand for distribution by himself/herself, it is reasonable to deem that such position of the wage creditor is succeeded to the mortgagee who subrogated the wage creditor as well as a preferential right of the wage creditor, and he/she can receive the dividends even without a separate demand for distribution, in cases where the wage creditor has already made a demand for distribution or made a provisional seizure for preserving a wage claim.

[3] The auction proceeds of several real estate for which the right of subrogation can be exercised are limited to the amount divided in proportion to the amount of each liability to be borne by the right of subrogation in proportion to the amount of each share of liability to be borne by the right of subrogation. Therefore, the right of subrogation can only be apportioned only to the disadvantage amount apportioned in such a way from the real estate where the right of subrogation is exercised

[1] Article 37 of the Labor Standards Act, Article 368(2) of the Civil Act / [2] Article 368(2) of the Civil Act, Articles 589(3), 605(1), 653, 658, and 728 of the Civil Procedure Act / [3] Article 368(2) of the Civil Act

Dongyang Card Co., Ltd.

Korea Housing and Commercial Bank

Daejeon High Court Decision 2002Na43 delivered on July 19, 2002

1. Of the distribution schedule prepared by the same court on November 2, 2000 with respect to the auction auction case of real estate (No. 11461) in Chungcheong District Court 9 Cheongju-ju Branch 9, 11461, the dividend amount of KRW 1,252,288,486 against the Defendant shall be changed to KRW 1,217,89,366, and the Plaintiff shall be new dividends of KRW 34,389,120, and the said distribution schedule shall be corrected.

2. The plaintiff's remaining claims are dismissed.

3. Five minutes of the litigation shall be borne by the plaintiff, and the remainder by the defendant.

Of the distribution schedule prepared by the same court on November 2, 200 with respect to the auction case of real estate auction as in the Cheongju District Court Decision 99 Taju District Court 11461, the amount of dividends to the defendant shall be changed to KRW 1,047,107,704, and KRW 205,180,782 shall be distributed to the plaintiff, and the above distribution schedule shall be corrected.

1. Facts of recognition;

(a) Payment of wages and claims;

(i)Seongyang Co., Ltd., on December 5, 1994, registered the establishment of the third-class neighborhood security right to the commercial buildings and their sites in the Seogsan apartment complex, Seogu, Daejeon, Seogsan, Daejeon, which was owned by Jinjin Construction Industry Co., Ltd. (hereinafter referred to as the "Yjin Construction"), with the mortgagee as to the building and its site in the Seogyang apartment complex, the mortgagee was registered at the third-class neighborhood security right amounting to 6,50,000 won.

(ii)After that, on September 14, 1995, the same company was changed to that of the same installment financing company, and was merged with the Plaintiff on January 12, 1998.

(3)The wage creditors of this case (hereinafter referred to as "the wage creditors of this case") filed an application for compulsory auction against the above commercial buildings and their sites owned by the employer of Youngjin Construction on or around June 1998, Daejeon District Court No.32014 (Attached Form No. 4), which are the employer, for the reason that they were not paid wages and retirement allowances from Youngjin Construction. Accordingly, as a result of the auction process, the amount of actual dividends for the subject matter of auction was set at KRW 3,042,72,063.

(4)After that, on the date of open distribution on February 23, 1999, the auction court of the auction case of the above 98 other 32014, distributed the amount of 645,431,080 won in the first order to the wage creditors of this case who have the lien under Article 37(2) of the Labor Standards Act, and distributed the total amount of their claims to the first and second mortgagees, and only the amount of 1,330,140,983 won which is the remainder of the actual dividends to the plaintiff who is the third mortgagees, and only the amount of 5,078,138,170 won which is the remainder of the actual dividends to the plaintiff who is the third mortgagees.

B. Preparation of the distribution schedule of this case

(1) On April 6, 1996, the Defendant completed the registration of establishment of the first-class collateral with regard to each real estate listed in the annexed real estate list (hereinafter referred to as the “instant real estate”), whereby the mortgagee was the Defendant, the debtor, and the obligor at a price of KRW 7,020,000,000.

(2) The Defendant filed an application for voluntary auction of the instant real estate with the Cheongju District Court 9 Cheongju District Court 9 Dong 11461 (Attached Form 5) (hereinafter referred to as “instant auction case”) based on the foregoing collateral security (hereinafter referred to as “instant auction case”). As a result, the amount to be actually distributed was set as KRW 1,418,098,646.

(3) On November 1, 200, the date immediately preceding the date of distribution on the auction proceeds of the instant real estate, the Plaintiff asserted that the Plaintiff had the right to receive dividends in preference to the Defendant in the instant auction case, by subrogationing the wage creditors of this case, since the Plaintiff was at a disadvantage due to the distribution to the wage creditors of this case, as described in the above Paragraph (a). Thus, the Plaintiff demanded distribution of KRW 208,121,359.

(4) Thereafter, on the date of distribution opened on November 2, 200, the auction court of the auction case of this case filed an objection against the Defendant on the date of distribution, and filed a lawsuit of demurrer against the distribution of this case after the Plaintiff raised an objection against the amount of KRW 205,182,540 out of the dividend amount against the Defendant on the date of distribution, with the order of priority 1, 2, and 3 of the Chungcheong Market and the Daejeon Metropolitan Government, respectively, as the holder of the right to deliver the total amount of the credit to him, and distribute the remainder after deducting the dividend amount of the creditors 1, 2, and 3 from the actual dividend amount, to the Defendant in the order of priority 4.

(5)On the other hand, the wage creditors of this case received a provisional attachment order issued by Daejeon District Court 97Kahap1819 on June 13, 1997 with respect to the remaining real property except for the real property No. 8 in the annexed list among the real property of this case as preserved right 2,271,054,490 won of wage claim for construction in Youngjin Construction as preserved right.

(c)other property owned by the Youngjin Construction and the auction thereon;

(1)In addition to the auction cases in the above "A" and "B", the auction cases in the [attached Form] Nos. 1, 2, 3, 6, and 7 with respect to other real estate owned by the employer of the wage creditor of this case, which are the employer of the wage creditor of this case, are carried out, respectively, [attached Form] set the same amount as that stated in the corresponding order column in the calculation statement 1, and the amount as stated in the above "A" and "B" are determined to be actually distributed, respectively, and there is no other property owned by the Corporation other than the auction objects in the seven auction cases listed in the calculation statement.

(2)However, even in the auction case No. 97 Taju Branch Branch of Cheongju District Court No. 13784 in the table of calculation statements, the wage creditors of this case requested the distribution of wage claims with preferential rights as stipulated in Article 37, Paragraph 2 of the Labor Standards Act, and received dividends of KRW 1,254,712,473, the total amount to be distributed in the auction case, and thereby, the Korea Asset Management Corporation, which was the succession of the first mortgagee of the auction object of the auction auction case No. 97 13784 in the above auction case, could have received the total amount of dividends, could not have been distributed.

(3)In the auction case of real estate owned by the country of conclusion, the amount of wage claims received by the wage creditors of this case, as dividends, from the auction case No. 32014 [Attachment 4] stated in Paragraph (a) above, the sum of KRW 645,431,080 and the sum of KRW 1,254,712,473, the sum of KRW 1,900,143,553 (Attached 2) paid by the wage creditors of this case from the auction case No. 988,32014 (Attachment 4) stated in the [Attachment 98,431,080] and the above auction case No. 13784.

(4)On the other hand, with respect to the auction case Nos. 1, 2, 3, 6, and 7 in the [Attachment] Calculation Table No. 1, 2, 3, 6, and 7, the Plaintiff did not claim the distribution of the instant wage creditor on the same ground as the above paragraph (a) above, and the auction case Nos. 1, 2, 3, and 6 in the [Attachment] Calculation Table No. 1, 2, 3, and 6 in the present [Attachment] Calculation Table No. 7] column, only the Defendant raised an objection as to the amount of distribution against the Korea Asset Management Corporation that the Defendant requested the distribution on behalf of the wage creditor and raised an objection as to the amount of distribution to the Korea Asset Management Corporation that the Defendant (the Plaintiff in this case)

[Evidence] The fact that there is no dispute (the total amount of wage claims of the wage obligee of this case is the wage claims with the preferential rights under Article 37(2) of the Labor Standards Act, the property owned by the Jinjin Construction is only the objects of auction in seven auction cases listed in the calculation statement [attached Form], the plaintiff did not demand an auction case listed in the calculation statement Nos. 1, 2, 3, 6, and 7 in the table of calculation statement], Gap Nos. 1, 2, 5, 7, 9, 10, 6-1 through 50, Eul evidence Nos. 1 through 6, 3-1, 2, 11, 15, and 17, and the whole purport of the pleading

2.The scope of the acquisition of the Plaintiff’s subrogation and the exercise of the subrogation rights;

A. The lien on wages, etc. under the Labor Standards Act is the so-called statutory collateral that can be paid preferentially to claims, taxes, etc. secured by mortgages on the whole property of the employer, and where part of the number of real estate owned by the employer is sold first and the wage creditors have received preferential payment from the auction proceeds in accordance with the lien, and where the mortgagee of the real estate sold at the auction due to the preferential payment from the above number of real estate under Article 368(1) of the Civil Act suffered any disadvantage than the simultaneous distribution of wage claims, the latter part of Article 368(2) of the Civil Act shall apply mutatis mutandis. If the wage creditors have received the same dividends from the above number of real estate at the same time, the said mortgagee may receive the preferential payment in preference to other real estate auction proceeds by subrogation to the wage creditors who have received the payment from the above number of real estate within the extent of the amount that they could have received the payment from the auction proceeds (see

(b)In accordance with the above facts, if the auction proceeds of the above seven auction cases falling under the property prior to the auction owned by the employer, are simultaneously distributed, the share to be borne with respect to 1,900,143,553 won of the total amount of wage claims by each auction case shall be divided in proportion to the ratio of the total amount to be actually distributed to each auction case (see Article 368(1) of the Civil Code; hereinafter referred to as "liability Sharing amount") to the total amount to be actually distributed to each auction case from the total amount to be actually distributed to the above seven auction cases, as shown in the attached Table 3 of the Calculation Statement 3.00,334 won. Since the share of the liability for wage claims to be borne by the auction object of the above auction case of the above 98ta-32014, the plaintiff shall not be apportioned to 253,727,746 won of the total amount of wage claims by the auction case of the above 98ta-32014.

(c)Therefore, the plaintiff can receive the above amount of money which he considers at a disadvantage than in the case of simultaneous dividends in subrogation of the wage creditors of this case within the extent of the share of liability of each of the auction items for other real estate owned by the Jinjin Construction.

3.The subject matter of the exercise of the right of subrogation of the plaintiff

A. In this case, among the above 7 auction cases, the property owned by the employer is limited to the object of auction in each auction case indicated in the calculation statement of calculation (attached Form), the auction cases of the above 98 Gaz32014, which served as the basis for the plaintiff's acquisition of the right of subrogation, cannot be subject to the plaintiff's exercise of the right of subrogation. In addition, in light of the grounds for recognition of the right of subrogation of senior wage creditors, the subrogation cases that the plaintiff can exercise the right of subrogation among the remaining 6 auction cases are the auction cases where the amount of the right of subrogation is not borne by the amount of liability for the amount of the wage claim of this case. According to the above facts, the auction cases of No. 1,254,712,473 won, which is the total amount of the amount to be actually distributed to the wage creditors of this case, the amount of 1,254,712,473 won in the attached Form No. 13784, which is the amount of the auction case in [attached Table 3] No. 216161,2154,2164,363

B. However, even in cases where a mortgagee may receive a distribution by subrogation, by applying the latter part of Article 368(2) of the Civil Act mutatis mutandis, even in cases where he/she may receive a distribution by subrogation, only if he/she has made a demand for distribution by the successful bid date under Article 728(1) of the Civil Procedure Act, which applies mutatis mutandis to the auction procedure to exercise a security right under Article 728 of the same Act. In cases where a legitimate demand for distribution has not been made, he/she cannot receive a distribution even if he/she is a creditor who has the right to demand preferential reimbursement under the substantive law, and where the distribution was made and confirmed by being excluded from the distribution schedule as he/she did not make a lawful demand for distribution, and where the distribution was made in accordance with the final distribution schedule, he/she cannot be deemed as having no legal ground for it (see Supreme Court Decision 2000Da32745, Sept. 29, 200).

C. In this regard, as in the auction case of this case, as in the other auction case of this case, since the plaintiff did not demand a distribution by the date of the successful bid, the plaintiff as the plaintiff did not participate in the distribution procedure of this case. The plaintiff asserted that the wage creditor of this case could not receive a distribution by participating in the distribution procedure of this case. Since the plaintiff made a provisional seizure prior to the decision of commencement of the auction of this case as to the auction object of this case, the wage creditor of this case may receive a distribution even if he did not demand a distribution by the date of the successful bid, so even if the plaintiff as the subrogation right holder did not demand a distribution by the date of the successful bid of this case, even if he did not demand a separate distribution by the date of the successful bid of this case, the plaintiff as

(1) The provisional seizure right holder of real estate prior to the commencement of the auction procedure shall be treated as demanding a distribution even if he did not demand a distribution (Articles 658 and 589, Paragraph 3 of the Civil Procedure Act). Even if such provisional seizure right holder fails to submit a claim statement by the successful bid date, the court of auction shall not exclude the person holding the provisional seizure from the distribution (see Supreme Court Decision 94Da57718 delivered on July 28, 1995). In such a case, the provisional seizure right holder may participate in the distribution by clarifying the amount of the provisional seizure and the lien until the date of distribution, and the court of auction shall also inform the provisional seizure right holder of it until the date of distribution or inquire the court issuing the provisional seizure ex officio and distribute it within the extent of the provisional seizure. Accordingly, even if the wage creditor of this case has completed the provisional seizure of real estate (attached Form 8 of the real estate in question) before the commencement of the auction procedure, so long as he did not have the right to demand the distribution of the real estate in the auction court of this case, the plaintiff can exercise the right to the provisional seizure of this case.

(2) Meanwhile, even if the latter part of Article 368(2) of the Civil Act applies mutatis mutandis to the mortgagee who is subrogated to the senior wage creditor by analogy, it cannot be deemed that the mortgagee succeeds to the status of the mortgagee as the mortgagee by having transferred the senior wage claim itself. However, if it is only deemed that the mortgagee is in a position to receive dividends in preference to other creditors by subrogation only the preferential rights of the mortgagee, which are the legal security of the senior wage creditor, regarding the status of the mortgagee who subrogated to the senior wage creditor, the right to demand dividends, without asking whether the wage creditor has made a demand for distribution in the auction case of other property of the employer or in a position not requiring a separate demand for distribution, it would be difficult to conclude that the mortgagee still has to demand a distribution for himself/herself, unless it is unreasonable for the mortgagee to view that some of his/her several real estate was sold first by auction and the completion period of the auction case, which was already in progress with respect to other property of the employer at the time when the wage creditor is entitled to preferential payment, it would be unreasonable for the mortgagee to exercise the right to demand dividends as well.

(3)In accordance with the above legal principles, since the wage obligee of this case, which is the object of auction in the auction case of this case, had made a provisional seizure prior to the commencement decision, the plaintiff subrogated to the wage obligee of this case may participate in the distribution without a separate demand for distribution. Therefore, as long as the plaintiff submitted data on the cause of subrogation and the disadvantage amount before the date of distribution in the auction case of this case, and made it clear that he participated in the distribution before the date of distribution, the auction court of this case may not exclude the plaintiff subrogated to the wage obligee of this case from the distribution solely on the ground that he did not demand for distribution. The defendant's assertion that the plaintiff should be excluded from the distribution of this case under other legal principles is rejected.

4. The method of calculating the amount to be received by the plaintiff by exercising the right of subrogation in the auction case of this case and the corresponding amount;

(a)In the event that the auction proceeds of another real estate owned by the mortgagee who is subrogated to the preferred wage obligee are several persons, the method of calculating the amount that can be distributed from each auction proceeds by exercising the right of subrogation is no provision in Article 368 of the Civil Code which applies mutatis mutandis to the method of calculating the amount that can be apportioned by exercising the right of subrogation. In such case, there is a view that ① in the event that several auction proceeds of real estate are simultaneous dividends, the subrogation obligee can receive the total amount that has been disadvantaged from the auction proceeds of the auction proceeds in which the right of subrogation is exercised within the limit of the share of each liability that should be borne with respect to the wage claim (hereinafter referred to as the "first theory"), ② The auction proceeds of real estate that can be exercised the right of subrogation is liable only for the amount calculated by dividing the amount that has been apportioned to the auction proceeds that have been distributed first in proportion to the share of liability that is to be borne with respect to the wage claim, so that the subrogation obligee can only receive dividends from the real estate that has exercised the right of subrogation only the amount divided in such way (hereinafter referred to the second theory).

(b)In the case of taking the first theory, although there is no ground for the subrogation right holder to treat the same as the joint mortgagee in the case of a joint mortgagee, and if the auction proceeds of several real estate which can exercise the subrogation right is part of the amount of subrogation, first of all, the legal relationship becomes extremely complicated because the next-order mortgagee in the case of a real estate where the subrogation right is able to exercise another subrogation right, and unlike the first theory, even if the subrogation right holder has received dividends within the extent of the share of liability to the wage claim from a certain real estate, within the extent of the share of liability to be borne at the time of the original simultaneous distribution, it seems that the next-order mortgagee in the auction case is responsible within the extent of the share of liability to be borne at the time of the real estate, so the subrogation right holder cannot be subrogated again because it seems unreasonable for the subrogation right holder to dispose of the interest between the right holder in the real estate in the case of an auction proceeds of which real estate is entitled to exercise the subrogation right. Meanwhile, the second theory is equivalent to the share of liability to the amount of the wage claim to be apportioned of each real estate.

(c)In full view of this part, if there are several auction proceeds for the real estate entitled to exercise the subrogation right, it would be reasonable to adopt the second theory in a way of calculating the amount to be distributed from the auction proceeds of the real estate over which the subrogation right holder exercises the subrogation right. The plaintiff and the defendant's assertion based on this different premise will not be accepted.

D. According to the above legal principles, in this case, the sum of the share of liability to be borne by wage creditors for the auction case except for the auction case Nos. 1, 46,918,078 won [Attachment 1,346,90,143,553 - [Attachment 1] total share of liability for the auction case No. 161,52,141 + [Attachment 4] share of liability for the auction case No. 491,703,334]. If the auction proceeds of the above 7 auction case are distributed simultaneously, the sum of the share of liability to be borne by wage creditors for the auction case shall be 1,346,918,078 won [Attachment 3] [Attachment 1,90,143,533,5333 - [Attachment 1] The share of liability to be borne by the auction proceeds of the auction case shall be calculated in [Attachment 2] as stated in [Attachment 3] 42,52527,4727, and 3734.

E.On the other hand, the part corresponding to the remaining disadvantage amount suffered by the plaintiff due to the simultaneous distribution can be satisfied by receiving the amount calculated by the same accounting method through the demand for distribution from the auction proceeds of the auction auction case Nos. 2, 3, 6, and 7 in the table of calculation statement of calculation (attached Form). However, as seen earlier, the plaintiff cannot exercise the right of subrogation for the auction proceeds of the auction proceeds of the above auction case. Accordingly, the part corresponding thereto shall be attributed to the plaintiff's damage.

3. Conclusion

Therefore, the auction court of the auction case of this case should have distributed only KRW 1,217,89,366 out of the actual dividends of the auction case of this case to the defendant and distributed KRW 34,389,120 to the plaintiff. Thus, the dividend table of this case should be changed to KRW 1,252,288,486 to KRW 1,217,89,366 and shall be revised to distribute the plaintiff a new amount of KRW 34,389,120 to the plaintiff. The plaintiff's claim of this case is justified within the extent of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Gowon-won (Presiding Judge)