20772 Objection against Execution

Co., Ltd.

Daejeon District Court Order 2020 Ma89 dated October 21, 2020

April 8, 2021

The special appeal is dismissed.

The grounds of special appeal are examined.

1. Case summary

The reasoning of the lower judgment and the record reveal the following facts.

A. On August 30, 2016, our bank (hereinafter referred to as "Korea bank") entered into a contract to establish a collateral security interest agreement with Esbnbnb (hereinafter referred to as "Esbnbnb") on a set of KRW 564,00,000 for the maximum debt amount, and up to August 30, 2021 for the strong board, which is a movable owned by Esbnbnb, in accordance with the Act on Security over Movable Property, Claims, Etc. (hereinafter referred to as "movable Claim Security Act"), in order to secure the debt of Esbnbnb's loans, and Esbnbnb's loan obligations, and registered the collateral security interest agreement as of August 30, 202 (hereinafter referred to as "the movable security interest in this case"). The registration record is recorded in Esbnb' column as "a set of collective movable property", "place of storage"/specialized in Esbnbnbn column, and recorded as "the thickness between factories".

B. On May 21, 2020, the applicant received the decision of provisional seizure on the corporeal movables owned by the Asbnb World [The Daejeon District Court 2020Kahap5057 (hereinafter referred to as the "Seosan Branch")]. The Seosan Branch enforcement officer executed provisional seizure on 256 items in the above Esbnb C&D factory.

The Bank applied for an auction to enforce the security interest in the movable property of this case ("Seosan Branch 2020No484," hereinafter "the auction of this case"). On July 1, 2020, the execution officer of the Seosan branch issued a seizure on the above 256 items of the 256 items of the 20th lecture, and on August 10, 2020, upon making a public announcement of the sale of corporeal movables, set the appraised value and the minimum comprehensive sale price at KRW 902,00,000.

C. The applicant filed an objection seeking the revocation of the execution of the seizure of the said movable in the instant auction procedure, which was conducted by the Seosan Support Execution Officer.

2. Scope of collateral.

A. Article 3 of the Act on Security over Movable Property provides that “ even if multiple movable properties (including movable properties to be acquired in the future) exist, a registration of security may be made for the purpose of setting the type, place, and quantity of an object, or by other similar methods.” This is to ensure that, when a security right over movable property is established for several movable properties, regardless of whether they are currently owned or to be acquired in the future, the object can be specified with no restrictive method of the object.

Article 35 of the Regulations on the Registration, etc. of Security against Movable Property and Claims provides for the registration of movable property and claims. If collateral is movable property, two methods to specify movable property are classified into two categories. First, in cases of specifying movable property according to the characteristics of movable property, the types of movable property prescribed by the rules of the Supreme Court and the manufacturing number of movable property or product numbers shall be recorded (Article 1(1)1(a)). This refers to cases where a security right against movable property is established in an individual movable property. Second, the type of movable property prescribed by the rules of the Supreme Court and the location of the storage place of movable property shall be recorded (main sentence of Article 1(1)1(b). This refers to cases where a security right is established in an aggregate movable property, and it is recognized only where the whole movable property of the same kind located in the same storage place is a movable property (proviso to paragraph (1) 1(b). On the other hand, the name of the movable property or other beneficial matters for specifying the movable property can be recorded (Article 1(2)2).

Article 6 of the Business Procedure Guidelines for Registration of Security against Movable Property and Claims (amended by the Supreme Court Rule 1710) provides for matters to be registered in an application for the specification of movable property and claims. Paragraph (1) 1 (a) provides for the entry of "in the case of specifying movable property according to the characteristics of movable property, the description given to each movable property, such as the type of movable property, the manufacturing number of movable property, the product number, etc.," and Paragraph (1) 1 (b) provides for the entry of "in the case of specifying movable property which is the secured object according to the storage place, the description of the type of movable property and the location of the place where the movable property is stored (including the lot number in the case of land, and in the case of a building, the lot number in the case of a building)". Meanwhile, Paragraph (3) provides for "the name, size, weight, material, date, color, form, the name of the storage place, possessor, etc. of movable property which is beneficial for the specification of movable property."

In full view of such provisions, structure, and legislative intent, where multiple movables are specified as a type of movable property and a storage place, namely, where a security right for collective movable property is created, the entire movable property in the same storage place is the object of a security right for movable property. Even if the type and storage place are recorded in the registration record, barring special circumstances, such as the parties’ agreement to designate the weight and restrict the object, the object cannot be deemed limited to the weight, and the weight is merely that recorded as reference to indicating the object.

B. According to the reasoning of the lower judgment and the record, the following facts are revealed.

The security interest in the movable property of this case identified the object of the contract according to the type and the storage place.

Article 5(1) of the contract to establish a collateral security right provides that "Where the proposal of collateral security is not consistent with the entry in the list of the collateral security at the end of this contract or is omitted, and the creditor claims it, the developer shall immediately take the registration of change or correction, etc." Paragraph (2) provides that "if the person who establishes a collateral adds or replaces all or part of the proposal of collateral security, if the added or replaced is a movable of the same kind as the collateral security, the additional or replaced object shall be secured by this contract without any separate contract."The list of collateral security rights at the end of the contract is stipulated as "a special contract," and the effect of the collateral is not infringed even when the collateral is modified or processed."

C. Examining these facts in light of the legal principles as seen earlier, the following conclusions are derived.

The instant movable property security interest, as a collective movable property, identified the subject-matter as a collective movable property according to the type and storage place. Despite the addition, replacement, transformation, or processing of the sign board, there was an agreement between the parties on the intent to become an object of the entire sign board located in the ASWD factory, and thus the entire sign board in the said factory becomes a collateral. The weight recorded in the registration record is merely an object indicated as reference to specify the subject-matter, and it cannot be deemed that it is limited to the subject-matter by weight.

Therefore, even if the execution officer executed the seizure of all the lectures within the above factory in the auction procedure of this case, it cannot be deemed that the scope of the security interest in movable property exceeded the scope of the security interest in

D. In the same purport, the lower court rejected the applicant’s assertion that the enforcement officer exceeded the scope of the instant movable property security interest in the instant auction procedure. In so doing, the lower court did not err by misapprehending the legal doctrine on the scope of the security interest in movable property, contrary to what is alleged in the grounds of special appeal, thereby adversely affecting the

3. The lower court determined as follows, on the basis of the existence of defects in the calculation of the minimum auction price as to the subject matter of auction in the instant auction procedure. An execution officer: (a) calculated by adding the minimum auction price to the total 902,00,000 won for the subject matter of auction in the instant auction procedure; and (b) appears to have stated the amount of KRW 3,523,438 in proportion to the 256 items on the list of the subject matter of auction as the assessed amount by item. Considering the characteristics of the blanket auction, even if the execution officer assessed the subject matter of auction by individual item, and calculated the total average auction price without calculating the minimum auction price as the minimum auction

Examining the reasoning of the lower judgment in light of the record, the lower court’s order did not err by misapprehending the legal doctrine as otherwise alleged in the grounds of special appeal. Other grounds of special appeal are new arguments in the special appellate trial, and thus, are not legitimate grounds of special appeal against the lower judgment.

4. Conclusion

The special appeal of this case is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

April 8, 2021

The presiding Justice shall mobilization by the presiding Justice

Justices Kim Jae-sik in charge

Justices Min Min-young

Justices Noh Tae-ok