Whether it is not permitted for an applicant creditor to specify the specific amount of the incidental claim in accordance with the account statement for the claim after comprehensively indicating the incidental claim such as the principal of the claim, other than the principal of the claim, as a claim for the application for auction (negative)

Article 80 subparagraph 3 of the Civil Execution Act, Article 268 of the Civil Execution Act, Article 192 subparagraph 2 and 4 of the Civil Execution Rule

New Bank Co., Ltd. (Law Firm Jeong, Attorneys Kim Byung-ju et al., Counsel for the defendant-appellant)

Korea

Incheon District Court Decision 2006Na7440 Decided January 18, 2007

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. The purpose of Article 80 subparag. 3 of the Civil Execution Act, which applies mutatis mutandis to the auction procedure to exercise a security right under Article 268 of the Civil Execution Act, and Article 192 subparag. 2 and subparag. 4 of the Rules of Civil Execution, is to specify the claims that constitute the cause of a request for auction to the applicant creditor at the stage of the request for auction, and to determine the amount of claims to the extent of the amount indicated in the application form. Thus, in a case where the applicant creditor files an application for auction with only a part of the claims as the claim amount, barring any other special circumstance, the claim amount of the applicant creditor cannot be determined within the limit of the claim amount stated in the application form for auction, and thereafter, the claim amount cannot be expanded by the method that the applicant creditor expands the claim amount to the claim amount to the extent of the claim amount stated in the application form. However, if the applicant creditor comprehensively indicated the incidental claims such as the principal and damages for delay in the application form for auction, but later specify the specific amount of the incidental claims by the account statement, it cannot be permitted.

2. According to the records, the plaintiff stated in the column for claim amount of the auction application of this case "The amount of KRW 300,000,000 (the amount of KRW 1.240,00,000,000,000,000,000,000 won on June 19, 2001, the amount of KRW 685,671,252,000,000,000,000,000 won on June 19, 2001, the amount of KRW 685,671,252,00,000 per annum from June 2, 2004 to the date of full payment." Although the time of occurrence of damages for delay is not specifically specified, it shall be deemed that the amount of damages for delay should be deemed as the claim amount at the rate of KRW 30,00,00,000,00,000,000.

However, according to the records, the plaintiff stated that the bond account statement submitted to the court of execution after being kept on the date of distribution of the auction of this case is KRW 396,771,252 in total, the principal of the general loan and the trade finance, and the interest and delay damages at the rate of 19% per annum from August 5, 2005 to August 5, 2005, the date of distribution, after August 19, 2004, as KRW 96,692,451 in total. In light of the above legal principles, in light of the above legal principles, it is not allowed to extend the principal amount of the loan to KRW 300,000 in the above application for auction to KRW 396,71,252, and accordingly, it is pointed out that the plaintiff's principal and interest should be calculated accordingly.

Nevertheless, the judgment of the court below which concluded that the plaintiff's above request for auction is specified as KRW 300 million, and thus, the plaintiff's submission of claims, including interest and delay damages, is not allowed by considering the expansion of the claim amount. It is erroneous in the misapprehension of legal principles as to the specification of claim amount and expansion of claim amount in an auction for the exercise of security right, and failure to exhaust all deliberations, which affected the conclusion of the judgment. The ground of appeal on this point has merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)