Whether the person holding the right to request auction may extend the claims

Article 204 of the Rules of Civil Procedure provides that the upper limit of the amount of claims to be secured shall be determined at the time of application by the applicant security holder, and the amount of claims secured shall be the amount of registration tax and education tax necessary for the registration of application for auction, the amount of excess auction, and the standard of judgment of surplus, etc., and the holder of the applicant for auction may file a new application for auction during the process of auction. Even if expansion of domestic affairs is allowed, it is not allowed to expand the claims after the application. Even if expansion of domestic affairs is allowed, it is limited to the period until the date of auction pursuant to Article 653(1) of the Civil Procedure Act, and it is not allowed to expand the amount of claims by the method of submission of the statement of claims

Articles 601, 653 of the Civil Procedure Act, Article 204 of the Rules of Civil Procedure

Supreme Court Order 83Ma393 dated October 15, 1983 (Gong1984, 90)

Samhee Korea Shipping Corporation

Freeboard

1. The plaintiff's appeal is dismissed.

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

The judgment of the court below shall be revoked.

The amount of KRW 1,391,986,298, and KRW 394,793,360 to the defendant shall be changed to KRW 2,807,062, among the dividend table prepared by the above court on June 19, 1991 with respect to the auction case of real estate rent in Busan District Court 91 another, the amount of dividends against the plaintiff is KRW 1,391,98,986,298, and the amount of dividends against the defendant shall be KRW 394,793,360.

1. Facts of recognition;

In addition to the above 10th distribution schedule, Gap 2-1, 3 (Application for Auction of Real Estate), 5, 17-1, 3-2, 14-2, 15, 17-19 of the above 10th distribution date, the plaintiff's remaining 900 won for the above 10th distribution of 5th distribution amount, 100 won for the above 10th distribution of 106th distribution amount, 200 won for the above 10th distribution of 9th distribution amount, 200 won for the above 10th distribution of 9th distribution, 106th distribution of 9th distribution amount, 200 won for the above 10th distribution of 9th distribution amount, 106th distribution of 9th distribution amount, 200 won for the above 10th distribution of 9th distribution of 9th distribution amount, 106th distribution of 190 won for the above 10th distribution of 9th distribution amount

2. Judgment on the plaintiff's assertion

A. The plaintiff is the cause of the claim in this case, not necessarily required to submit the statement of claim in a voluntary auction before the date of auction, but it is allowed to extend the amount of claim by the deadline for payment (or the date of distribution). Since the plaintiff's total amount of the plaintiff's claim against the non-party company secured by the above collateral security right was KRW 1,391,986,298, the plaintiff stated only the amount of claim as 1,000,000 in the application for auction, and as long as the amount of claim was expanded by the submission of the statement of claim before the date of distribution to the total amount of the claim, the auction court should distribute the above expanded amount of claim to the plaintiff, so it is unjust to distribute only the amount of KRW 1,00,000,000, which is the amount stated in the application for auction to the plaintiff.

(1) In exercising a security right, Article 204 subparag. 2, subparag. 4 of the Rules of Civil Procedure provides that the upper limit of the amount of claims to be exercised at the stage of applying for a security right shall be determined. (2) In light of the fact that the amount of claims secured is the amount of registration tax and education tax necessary for the registration of a request for auction, the amount of excess auction and the amount of surplus without reserve, etc., and (3) that a creditor applying for auction may request a new auction in the course of auction, it is reasonable to deem that the extension of claims is not permitted after the request (see Supreme Court Order 83Ma393, Oct. 15, 1983; Supreme Court Decision 83Ma393, Oct. 15, 1983; Supreme Court Decision 728, supra, Article 653(1) of the Act that applies mutatis mutandis to the procedure of auction for real estate by the date of the request for an auction, each creditor shall again submit an account statement and the amount of claims to the creditor who fails to submit an account statement for auction.

Therefore, the submission of the claim statement to the effect that the plaintiff expands the claim amount after the auction date of this case is recognized as above, so the plaintiff's above assertion is without merit.

B. In addition, even after the enforcement of the amended Civil Procedure Act, where the provision on the submission of statement of claim under the Civil Procedure Act, which was applied only to the previous compulsory auction, applies mutatis mutandis to the voluntary auction procedure, the case where the court of auction recognizes the extension of the amount of the claim if it submits the statement of claim before the date of distribution according to the previous practice is weak. Thus, even after the enforcement of the above amended Act, even though the practice allowing the extension of the claim prior to the date of distribution was done in the voluntary auction, it would be less trust of the plaintiff who is the applicant for auction. (2) The auction court did not notify the plaintiff that it should submit the statement of claim to the plaintiff until the date of the auction. (2) The auction court sent the notice to the plaintiff on June 1, 1991, which was later, "the creditor shall submit the statement of claim payment and the date of distribution" to the plaintiff, and it stated that "the creditor shall submit the statement of claim to the plaintiff by no later than three days before the designated date of auction."

(1) On the other hand, there is no evidence to acknowledge that the practice allowing the extension of the claim claims was made in the voluntary auction of real estate even after the enforcement of the amended Civil Procedure Act. (2) In full view of the whole purport of pleading as stated in Gap evidence No. 16 (payment of the price and a summons of the date of distribution), where there is no dispute over the establishment, it may be acknowledged that the plaintiff was given a peremptory notice to submit the statement of claim to the plaintiff. However, as seen earlier, as the above, Article 653 of the Civil Procedure Act provides that each creditor shall submit the statement of claim until the date of the successful bid, so it cannot be said that the auction court has a duty of peremptory notice to the auction court, since Article 607, 1, 3, and 4 of the Civil Procedure Act does not stipulate the period for submission, and since there is no provision ordering the court to order the auction court to issue the statement of claim under Article 653(1) of the Civil Procedure Act before the date of the successful bid distribution, it cannot be seen that the auction court failed to submit the above statement of claim within the auction date.

C. In addition, the plaintiff (1) stated the maximum debt amount in the registry in the auction held by the exercise of the right to collateral security as in the case of this case, and there is no possibility that the lower-ranking creditor might be out of a arbitrative creditor, etc., in light of the fact that the maximum debt amount in the auction held by the exercise of the right to collateral security is specified in the registry. (2) Even if the plaintiff did not so, the plaintiff's claim amount in the above request for auction is expected to be extended from the fact that "one million won out of the amount of 1,250,000,000 won" in the above request for auction, which is different from that of the absence of any indication as to the extension of the claim amount. Therefore, in light of the provisions of Article 204 subparagraph 4 of the Civil Procedure Rule, the plaintiff's claim amount at least KRW 1,250,000 shall be considered as the claim amount at least KRW 1,00,000,000 which is part of the above claims secured by the right to collateral.

D. Finally, the plaintiff argues that as long as the defendant did not submit the claim statement by the date of the successful bid, the defendant should be excluded from the above dividends.

As seen earlier, the lower-class mortgagee registered prior to the registration of the commencement of the auction of the instant real estate by the Defendant is entitled to receive dividends according to the detailed validity of the right to collateral security even if the Defendant did not make a demand for distribution, and the lower-class mortgagee, who is not the applicant for auction, is entitled to receive dividends within the scope not exceeding the maximum debt amount on the registry pursuant to the purport of Article 587(2) which is applicable mutatis mutandis pursuant to Article 653(1) of the Civil Procedure Act, unless he fails to submit a claim statement by the date of auction pursuant to Article 653(2) of the same Act. In addition, as seen earlier, the Defendant cannot be deemed to be excluded from dividends due to the reasons as alleged above by the Plaintiff. As long as the auction court should distribute dividends to the Plaintiff only according to the amount stated on the application for auction, the lower-class mortgagee’s dividends under the distribution schedule cannot be distributed to the Plaintiff, and thus, the Plaintiff’s assertion that the above claim against the Plaintiff cannot be asserted.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking an increase in the amount of dividends against the plaintiff is dismissed as it is without merit, and the decision of the court below with the same conclusion is just, and the plaintiff's appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing plaintiff. It is so decided as per Disposition.

Judges Hong Il-il (Presiding Judge)