Where the amount of a claim by a mortgagee of a right to collateral security exceeds the maximum debt amount of the right to collateral security under the circumstances where the mortgagee and the debtor are identical and no creditor or third acquisitor is available pursuant to Article 148 of the Civil Execution Act, the portion of the proceeds from sale exceeding

In an auction procedure under the Civil Execution Act, if the debtor is the same as the mortgagee of the right to collateral security, the maximum debt amount of the right to collateral security is merely the meaning of the creditor entitled to receive dividends under Article 148 of the Civil Execution Act or the third acquisitor of the real estate for the purpose of collateral security, and such real estate can only be repaid within the maximum debt amount. Therefore, the so-called limitation of liability cannot be deemed to be the so-called limitation of liability that the creditor entitled to dividends under Article 148 of the Civil Execution Act or the third acquisitor may receive reimbursement, unless there is a creditor entitled to dividends under Article 148 of the same Act or a third acquisitor, even if the maximum debt amount of the mortgagee exceeds the maximum debt amount

Articles 145 and 148 of the Civil Execution Act, Article 357 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

National Agricultural Cooperative Federation

Defendant

Suwon District Court Decision 2007Na6070 Decided December 13, 2007

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

The grounds of appeal are examined.

In the event that the total amount of claims exceeds the maximum amount of claims with respect to the right to payment of the original, interest, penalty, damages incurred by the nonperformance of the obligation, and the execution cost of the mortgage, the effect of the right to payment of the debt remains still over the remainder of the debt regardless of the maximum amount of claims (see Supreme Court Decision 2000Da59081, Oct. 12, 2001, etc.). In the auction procedure under the Civil Execution Act, if the debtor is identical with the mortgagee, the meaning of the maximum amount of the right to payment of the debt cannot be deemed to be the so-called limit of the liability that only claims can be paid within the maximum amount of the debt, and the real estate cannot be deemed to be the maximum amount of the debt, so long as there is no creditor or third party who is entitled to payment under Article 148 of the Civil Execution Act or who has acquired the right to payment of the debt, the amount exceeding the maximum amount of the maximum amount of the debt shall not be refunded to the mortgagee 296.

On the contrary, the court below accepted the measures of the executing court which did not appropriate the amount of the maximum debt of the right to collateral security and the remaining amount of the claim for distribution, among the proceeds of sale, to repay the debt exceeding the maximum debt amount of the right to collateral security, and distributes it to the mortgagee. In so doing, the court below erred by misapprehending the legal principles on the distribution of the debt amount exceeding the maximum debt amount of the right to collateral security.

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 Kim Young-ran (Presiding Justice)