[1] Whether the latter part of Article 368(2) of the Civil Act shall apply mutatis mutandis to a mortgagee who was at a disadvantage than in the case of simultaneous dividends under Article 361(1) of the Civil Act as a result of the auction where some of the real estate owned by the employer was sold first and the wage creditor was given preferential payment from such auction proceeds (affirmative)

[2] In a case where a wage creditor who has preferential right to payment under the Labor Standards Act or a person who has subrogated right to wage claims has provisionally seized real estate for the purpose of auction prior to the commencement of auction procedure, whether a preferential distribution can be received only by provisional seizure, even without a demand for distribution by the completion period

[3] The matters to be indicated in the case of provisional seizure in order to preserve preferential payment right of the owner of the mortgaged property on behalf of the subordinate mortgagee on behalf of the creditor of the preferential payment

[1] The so-called statutory security right on the whole property of the employer is the so-called statutory security right which can be paid preferentially to claims secured by mortgage, tax, etc., and if part of the real estate owned by the employer is sold first and the wage creditor has received preferential payment from the auction proceeds, and as a result, the mortgagee of the auction real estate was at a disadvantage than the simultaneous distribution of wage claims from several real estate under Article 368(1) of the Civil Act, the latter part of paragraph (2) of the same Article shall apply mutatis mutandis, and if the wage creditor was at a same time to the extent of the amount that he could have received reimbursement from other real estate, the mortgagee who was at a disadvantage as above may receive the preferential distribution in preference to the auction procedure of other real estate by subrogation

[2] Even though it is a wage creditor who has the right to preferential reimbursement under the Labor Standards Act, a demand for distribution shall be made within the period of a demand for distribution in the voluntary auction procedure, but the right to a real estate provisional seizure prior to the commencement of the auction procedure shall be treated equally as having made a demand for distribution of the claim, even if it is not a demand for distribution. Therefore, if a wage creditor who has the right to preferential reimbursement under the Labor Standards Act or a person who has the right to subrogation of the wage claim has provisionally seized the real estate for auction purposes prior to the commencement of the auction procedure with such right as a claim claim, even if it is not a demand for distribution by the completion date of the demand for distribution, even if it is not a demand for distribution

[3] When a junior mortgagee seizes a provisional seizure in order to preserve the preferential payment right of the owner of the mortgaged object (debtor of the secured claim) by subrogation of the preferential payment right of the secured creditor, it shall not be clearly stated that the mortgagee holds the claim that was the secured claim of the mortgage against the owner of the mortgaged object (the owner of the real estate shall not be related to the debtor of the secured claim of the mortgage). In addition, it shall be clearly stated that the mortgagee of the pertinent real estate did not obtain the satisfaction of the mortgage due to the senior wage claim of the owner of other real estate in the auction procedure as a mortgagee of the pertinent real estate and that the mortgagee exercises the preferential payment right of the secured creditor (the secured claim of the provisional seizure

[1] Article 368 of the Civil Act / [2] Article 368 of the Civil Act, Articles 84 and 88 of the Civil Execution Act, Article 37 of the Labor Standards Act / [3] Article 368 of the Civil Act, Article 88 of the Civil Execution Act, Article 37 of the Labor Standards Act

[1] Supreme Court Decision 97Da9352 delivered on December 22, 1998 (Gong1999Sang, 183)

E. E.S. E. B.O.D. (Attorney Chang Chang-ho et al., Counsel for the defendant-appellant)

National Bank of Korea (Attorney Yoon Sang-sung et al., Counsel for defendant-appellee)

Daegu District Court Decision 2006Gahap254 decided April 6, 2007

August 27, 2007

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the court of first instance is revoked. With respect to the real estate auction case (hereinafter “instant auction”) No. 8472, Daegu District Court (hereinafter “Seoul District Court”), the amount of dividends 2,061,858,690 won against the defendant in the distribution schedule prepared by the said court on August 2, 2006, shall be reduced to KRW 1,898,089,729, and the amount of dividends 163,768,961 shall be distributed to the plaintiff and the distribution schedule shall be corrected.

1. Facts of recognition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in Gap evidence 1 through 8, 10, 11, 12, and 13-1 through 3:

A. In order to secure future loans to ASEAN Co., Ltd. (hereinafter “ASEAN”), the Korea Development Bank established the first priority mortgage (No. 4912, Feb. 6, 1992; 2.12, the maximum debt amount); the second priority mortgage (No. 36612, Oct. 16, 1992; 1.67,00 million won); the third priority mortgage (No. 17123, May 8, 1993; 830,000,000 won) with respect to the land and the ground (hereinafter “the first auction object”); and the third priority mortgage (a total of KRW 1.5 billion,00,000,000,000 won, which is KRW 17123,000,000,000 won on July 19, 1995, KRW 195,50,000,000 on May 19, 1995).

B. On September 29, 1998, the Choung Bank transferred the instant loan claim to the Korea Asset Management Corporation; on July 26, 2000, the Korea Asset Management Corporation (hereinafter “the instant loan”); and on October 26, 200, the instant loan claim based on an assignment of assignment contract as of July 26, 200, and a contract transfer and underwriting contract as of October 26, 200, in sequence, again assigned the instant loan claim to the Mauri Specialized Asset-backed Securitization Company (hereinafter “Maduri”). At each time of the transfer, it notified ASEAN of

C. As a transferee of the instant loan claim, which is the secured claim of each of the above paragraph (a) above, filed an application for a voluntary auction (hereinafter “the first auction”) with the Seoul District Court’s branch court around 2001 1891. The above auction court: (a) distributes dividends of KRW 1,621,84,132 on February 27, 2002, which is the date of distribution; (b) distributes the amount of dividends of KRW 1,621,884,132, which is the date of distribution; (c) the wage of KRW 447,41,091 (1); (d) the amount of KRW 1,74,473,41 (1); and (d) the amount of dividends of KRW 1,665, which is the object of the instant auction; and (d) the amount of dividends of KRW 1,675,00 among the employees of the Seoul District Court; and (d) the amount of dividends of KRW 1,15675,257,2,25065 of the dividend.

D. Around July 2002, the Maddong filed an application for provisional attachment of the auction property of this case, which is owned by tax authorities, on August 23, 2002, and completed the provisional attachment registration with regard to the claim amounting to KRW 447,41,091, which was KRW 447,411,091 on August 23, 2002.

E. Meanwhile, in the case of the auction of real estate rent (the actual dividend amount of KRW 717,495,511; hereinafter “the second auction”) by the government branch of the Seoul District Court at around 2001, 30530, which is in progress with respect to other real estate owned by ASEAN, and the Daejeon branch of the Korea Asset Management Corporation at the public auction (the amount of KRW 956,67,900; hereinafter “third auction”) at around 2004-2136 (the amount of actual distribution of KRW 956,67,90; hereinafter “third auction”), as a result of exercising the lien by subrogation of each son’s workers, the Madern was distributed KRW 135,069,64, and KRW 123,062,534 on April 12, 205, and KRW 123,064 on November 14, 2005.

F. After the registration of the provisional seizure of this case, the auction procedure of this case (the period to demand a distribution was 4,058,264,413 won which is to be actually distributed, and 4,058,264,413 won which is to be actually distributed) was commenced after the registration of the provisional seizure of this case, and the Maspa court submitted a claim statement to the effect that on July 14, 2006, the period to demand a distribution of the auction procedure of this case, it is to exercise a preferential right by subrogation of children workers at the auction court. However, the above auction court prepared a claim statement to distribute the remainder of 2,061,858,699,830 won which is to be distributed to the lessee in the order of first priority, except for the plaintiff, and second priority, 65,949,830 won which is to be distributed to the seizure authority, and third priority, 1,394,641,020 won, and 4th priority.

G. On August 2, 2006, the Materns appeared on the date of distribution, and filed an objection to the said distribution. On August 2, 2006, the Plaintiff transferred to the Plaintiff all of the loan claims of this case and the rights incidental thereto (right of subrogation, right to claim a dividend withdrawal, etc.). At that time, the Plaintiff notified ASEAN and the State of the assignment of the said claim. The Plaintiff filed a lawsuit of demurrer to the distribution of this case on August 8, 2006, which was within seven days from the date of distribution.

2. The plaintiff's assertion

A. The Plaintiff had the right to preferentially pay to the Defendant the amount of KRW 258,132,198 paid out of KRW 421,901,159, 259, 258, 132,198, 198, which was paid out in the first auction procedure, to the employees of the Plaintiff, who were the right to be paid the first auction at the same time, could not have been paid out of several real estates. If the same was paid out at the same time from several real estates on behalf of the employees of the children who were the right to be granted priority, the right to be paid out of KRW 163,768,961, 29, 258, 258, 198, which was paid out of the third auction procedure.

B. Since the Mafri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri

3. Determination

A. Wage claims are so-called statutory collateral rights that can be paid preferentially to claims secured by mortgages, taxes, etc. on the whole property of the employer, and where some of the real estate owned by the employer is sold first and the wage creditors have been given preferential payment from the auction proceeds in accordance with the lien, and as a result, the mortgagee of the auction real estate was at a disadvantage than the simultaneous distribution of wage claims from several real estate under Article 368(1) of the Civil Act, the latter part of Article 368(2) of the Civil Act shall apply mutatis mutandis to the mortgagee who was at a disadvantage as mentioned above by analogy of the latter part of Article 368(2) of the Civil Act, if the wage creditors have received dividends from several real estate at the same time, he/she shall be entitled to receive dividends in preference to other real estate auction procedures by subrogation to the extent that he/she could have received reimbursement from other real estate (see Supreme Court Decision 97Da9352 delivered on December 22, 198)

B. Even if it is a wage creditor having the right to preferential reimbursement under the Labor Standards Act, the right to demand a distribution shall be granted only by the completion date of the right to demand a distribution in the voluntary auction procedure. However, even if the person having the right to demand a distribution prior to the commencement of the auction procedure does not demand a distribution, it is treated equally as having made a demand for a distribution as to the claim subject to a provisional seizure. Therefore, if the wage creditor having the right to preferential reimbursement under the Labor Standards Act or the person having the right to subrogation of the wage claim has provisionally seized the real estate for auction purpose before the commencement of the auction procedure, even if the right to demand a distribution is not made by the completion date of the right to demand a distribution, it shall be possible to receive

However, it is not because the secured debt of a junior mortgagee has a preferential right to payment on the debtor's property. It is not because the secured debt of a junior mortgagee has a preferential right to payment on the debtor's property, but because of statutory subrogation (the right to preferential payment of a junior mortgagee is legally transferred to a junior mortgagee) by analogical application of Article 368 (2) of the Civil Act on joint mortgage. Since the right of a junior mortgagee to preserve by subrogation is not the secured debt itself but the right to preferential payment secured by a mortgage, the other party who exercises the right to subrogation is not the debtor of the secured debt but the owner of the secured debt (limited to cases where the debtor of the secured debt and the owner of the secured debt are the same as the other party who exercises the right to preferential payment on the secured debt). Therefore, considering the nature of the secured debt of a senior mortgagee's right to payment on the secured debt such as transfer of ownership of the secured debt after the debtor established a mortgage, if the debtor of the secured debt is different from the debtor of the secured debt, the mortgagee should have a preferential right to payment on other real property as the secured claim.

C. In full view of the reasoning of the argument in the evidence No. 9, as to the instant case, the Madiva shall state the claim amount in KRW 447,411,091, which is held by the Madiva in the application form at the time of applying for the provisional attachment of this case. The content of the claim claim is stated in the bond guarantee agreement dated February 7, 1995, the bond guarantee agreement dated October 17, 1995, and the agreement on the transaction of the bill dated October 17, 1995, and only appended documents proving the cause of the claim for the instant loan as the cause of the application. Since the Madiva did not state the circumstance that the Madiva was participating in the first auction but did not receive dividends due to the exercise of the lien of the Madiva's employees, it can be recognized that the claim for the instant provisional attachment was a loan claim for the instant case, and that the amount of the above claim is an auction claim for the Madiva's 14127th.

D. Therefore, as a person holding a provisional seizure who has the claim for the instant loan claims, in relation to the instant loan claims, even though he did not demand a distribution by the completion period for the demand for distribution, it may be treated as having made a demand for distribution with respect to the instant loan claims, even though he did not demand a distribution by the completion period for the demand for distribution. However, in order to receive a preferential distribution in the auction procedure of this case by exercising the right to demand a distribution, the right to demand a distribution is not a person having a preferential right to demand a distribution, and in order to receive a preferential distribution in the auction procedure of this case by exercising the right to demand a distribution, he did not make a demand for a distribution with respect to the instant wage claims by the expiration date for the demand for distribution, and the same cannot be treated as having received a demand for distribution with respect to the instant loan claims in subrogation, which are separate rights from the instant provisional seizure claims, and therefore, it shall not be said that the Plaintiff, the transferee, without the premise of the demand for distribution by the completion date for demand

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed.

Judges Choi Jin-sik (Presiding Judge)