Plaintiff (Law Firm Good Sejong, Attorneys Lee Jong-soo et al., Counsel for the plaintiff-appellant)

Republic of Korea and two others

May 11, 2012

Seoul Central District Court Decision 2010Kahap56116 Decided November 30, 2010

1. The plaintiff's appeal against the defendants is dismissed in entirety.

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

The judgment of the first instance court is revoked. The defendants jointly and severally pay to the plaintiff 120 million won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Facts of recognition;

The following facts may be acknowledged if there is no dispute between the parties, or if the whole purport of the pleadings is added to each of the statements in Gap evidence 1 through 7, 8, 10 through 14, and 16 through 30 (including each number):

(a) Conduct of an auction en bloc;

(1) Two Mussmi Construction Co., Ltd. (hereinafter “Yusmi”) newly built a tenement house (hereinafter “instant housing”) on the land of the Pussmi-Gu, Pakistan-si ( Address 1 omitted), 49,587 square meters of forests and fields ( Address 2 omitted) and 688 square meters of land (hereinafter “each of the instant land”).

(2) The application of the National Bank Co., Ltd. (hereinafter “National Bank”), which is the right to collateral security regarding each of the instant lands, was filed on September 4, 2002 with respect to each of the instant lands, and the voluntary decision to commence auction was rendered on September 4, 2002 with the District Court Decision 2002Ma38289, which was the right to collateral security regarding each of the instant lands, and the voluntary decision to commence auction was made on February 18, 2003 and the voluntary decision to commence auction was jointly made on February 18, 2003

(3) However, regarding the instant house after the decision to commence the voluntary auction was rendered, ① the maximum debt amount on February 25, 2003 is KRW 800 million; ② the registration date is KRW 500 million; the registration date is KRW 500 million; the registration date is KRW 300 million; the registration date is KRW 500 million; the registration date is the establishment of a mortgage and the maximum debt amount under the name of Nonparty 5, who is based on the mortgage contract on February 20, 2003; the registration date was successively completed under the name of Nonparty 4, who is based on the mortgage contract on February 20, 203; ② the maximum debt amount was KRW 420 million on March 3, 2003; ② the registration date was the establishment of a mortgage contract under the name of Defendant 2, who is based on the mortgage contract on February 28, 2003; and ③ the registration date was the maximum debt amount of KRW 300,300,34300.

(4) On November 10, 204, each of the instant lands and buildings was awarded to Nonparty 6, and the said auction court, on January 25, 2005, prepared a distribution schedule with the amount of KRW 2,55,626,149, to be actually distributed on the date of distribution, as follows (hereinafter “instant distribution schedule”).

○ 1st priority (wages creditor): Nonparty 76,730,340 won, Nonparty 85,360,000 won

○ 2nd priority (person entitled to claim delivery): 489,150 won per strike.

○ 3rd priority (mortgaged on each land of this case): National Bank of Korea 88,689,963 won

○ 4: Total amount of 45,652,120 won, such as the Korea Labor Welfare Corporation, the National Health Insurance Corporation, etc.

○ Order 5 (Lessee with a fixed date): Nonparty 9 25,183,299, Nonparty 10 25,183,299

○ 6th priority (mortgaged on the instant housing): Nonparty 380,000,000

○ 7rd priority (the mortgagee of each of the instant lands and houses): Nonparty 500,000,000

○ 8: Nonparty 4258,337,978

(5) Defendant 3 appeared on the above date of distribution as the assignee of the claim and raised an objection against the amount of distribution by Nonparty 3, Nonparty 5, and Nonparty 4.

(6) On March 15, 2005, the above auction court deposited KRW 801,817,165 (No. 1096), 501,135,735 (No. 1095), 258,924,787 (No. 1097, 2005, 205, 2005, 2005, 258, 258, 787 (No. 1097, 2005, 2005, 2005), on the ground that Defendant 3’s filing of a lawsuit of demurrer against the distribution, and the creditor’s provisional seizure of claims by Nonparty 6.

B. Progress of the relevant lawsuit

(1) On February 4, 2004, Nonparty 1, Nonparty 2, Nonparty 11, Nonparty 12, Nonparty 13, and Nonparty 14 filed a lawsuit claiming cancellation of the right to collateral security against Nonparty 3, Nonparty 5, Nonparty 4, and Defendant 2, the mortgagee on the instant housing, on the ground that each of the above right to collateral security agreements constituted a fraudulent act, against the creditors of both countries, on the ground that the pertinent right to collateral security agreement constituted a fraudulent act.

(2) In the appellate court of the above case where the Seoul High Court took place 2004Na70750, Jan. 13, 2006, each of the above mortgage contract constitutes a fraudulent act, and thus, each of the above mortgage contract should be revoked within the scope of KRW 1,367,172,010 in total of the preserved claim amount of Nonparty 1, etc., each of the above mortgage contract was revoked within the scope of KRW 387,816,191 in relation to Nonparty 1, up to KRW 131,186,917 in relation to Nonparty 2, up to KRW 131,186,917 in relation to Nonparty 11, up to KRW 153,397,259 in relation to Nonparty 12, up to KRW 282,776,712 in relation to Nonparty 13, up to KRW 200,49, 315 won in relation to Nonparty 14, and up to KRW 2165167.

(3) On the other hand, on February 1, 2005, Defendant 3 filed a lawsuit of demurrer against distribution against Nonparty 3, Nonparty 5, and Nonparty 4, etc. on the ground that each of the aforementioned mortgage agreement constitutes fraudulent act, which was after the said objection was raised by the District Court 2005Gahap784.

(4) On August 11, 2006, the above court held that since the above contract to establish a mortgage constitutes a fraudulent act, the amount of the dividends of the non-party 2, non-party 12, non-party 14, and non-party 4 who acquired by the defendant 3 should be reduced to the amount divided by the ratio of the dividends of the non-party 3, non-party 5, and non-party 4, the amount of dividends of the non-party 3 should be 475,097,827, and the amount of dividends of the non-party 5 to non-party 296, 142, the amount of dividends of the non-party 4 to non-party 2, the amount of dividends of 258,37,978 won to non-party 4, the amount of dividends of 153,419,765 won, and the amount of dividends of the defendant 3 to non-party 4 to the above 2,4715.278

(c) Additional dividends by the auction court;

(1) On March 5, 2008, the above auction court revised the dividend amount of Nonparty 3 as KRW 475,097,827, and KRW 500,000 against Nonparty 5 as KRW 296,936,142, the dividend amount of Nonparty 4 as KRW 258,37,978 as to Nonparty 4, KRW 153,419,765, and KRW 632,84,244 as to Defendant 3’s dividend amount as KRW 632,84,244 (hereinafter “the first correction”).

(2) In addition, on July 8, 2009, the above auction court, based on the final judgment of the claim for the cancellation of the above right to collateral security, divided the sum of the amount corresponding to the preserved claim, which was revoked as shown in the attached Table, into the ratio of the maximum debt amount to the non-party 3, and revised the dividends of the non-party 3 as KRW 475,097,827 to KRW 258,545,739, the amount of dividends of the non-party 5, the amount of dividends of KRW 296,936,142 to the non-party 5, the amount of dividends of KRW 161,591,087, the amount of dividends of the non-party 4 to the non-party 96,954,652, respectively (hereinafter referred to as the "second revision").

(3) However, with respect to the amount of dividends of KRW 296,936,142, which is the amount of dividends against Nonparty 5 following the above first correction, and the interest accrued therefrom, after the above second correction, the Incheon District Court No. 2005Ma6487, Mar. 12, 2008, which was before the above second correction, did not have the dividends paid to the creditors of the seizure and collection.

(4) On August 31, 2009, the above auction court against the non-party 3 and non-party 4 made an additional amount of KRW 273,017,201 [275,097,827 - 258,545,739 won] + (153,419,765 won - 96,954,652 won) and interest thereon as the distribution foundation, whichever is 275,683,736,513 out of the actual amount of dividends under the revision of the above first distribution schedule as to the non-party 3 and non-party 4 as to the amount of dividends pursuant to the above revision of the second distribution schedule, the remainder of the maximum debt amount after cancellation of the claim amount as stated in the attached table for cancellation of the claim for the right to collateral security had been acquired by the non-party 2,135,736,513 won and then acquired the additional dividends to the non-party 1397,7537.

D. Transfer of the right to claim dividends and payment of dividends following rectification of the distribution schedule

(1) On the other hand, on March 2, 2007, Nonparty 3 transferred to Nonparty 15 the right to demand payment of KRW 120 million out of the above dividends (the transfer of the right to demand payment of dividends or the effect of provisional seizure on the right to demand payment of deposits) and notified the Republic of Korea of the fact on April 2, 2007. The Republic of Korea received the notification on April 3, 2007. ② on March 28, 2007, transferred the right to demand payment of KRW 100 million out of the above dividends to the Republic of Korea on April 17, 2007, and notified Nonparty 1 of the receipt of the notification to the Plaintiff on April 27, 2007.

(2) As to the above claim for dividend payment, the creditor is Nonparty 6, and the amount preserved was served on the Republic of Korea on January 28, 2008, the order of provisional seizure of claim No. 2008Kadan5047, the District Court Decision No. 2008.

(3) However, according to the above second correction, the amount of dividends against Nonparty 3 was corrected to KRW 258,545,739, while the execution was cancelled on April 20, 2007 by the Jung-gu District Court Decision 2004Kadan50673, which was the cause of deposit, the above auction court paid KRW 120 million out of the above dividends to Nonparty 15 on August 31, 2009 and KRW 18,545,739 to Nonparty 17 on September 3, 2009, respectively, and paid KRW 120 million to Nonparty 16 on September 3, 2009.

2. Determination on the assertion of illegality of the instant additional dividends

A. The plaintiff's assertion

(1) In cases where the distribution schedule is revised due to the revocation of the right to collateral security by fraudulent act in the auction procedure, the auction court shall make a demand for distribution and make an objection to distribution, and make a lawsuit of demurrer against distribution within a lawful period, and make the distribution amount deleted by the beneficiary to the extent that the claims of the creditors who filed a lawsuit of demurrer against distribution are not satisfied, and make the correction as the distribution amount of the relevant creditors. Without considering the existence of other creditors who did not follow the above procedure, the remaining distribution amount except the dividend amount of the deleted beneficiary should remain as

(2) Therefore, after the above first correction on March 5, 2008, the above auction court paid 120 million won to the non-party 15, 120 million won to the non-party 16, 170 million won to the non-party 17, 120 million won to the plaintiff, and 120 million won to the non-party 17, respectively. However, the above auction court delayed payment illegally without any legal ground on July 8, 2009, and made the second correction without any legal ground, and then made the additional distribution of this case to the defendant 2 and the defendant 3.

(3) The Plaintiff was unable to receive the dividend of KRW 120 million, which was acquired from Nonparty 3 due to the instant additional dividends following the said second correction. Defendant 2 and Defendant 3 obtained benefits from the instant additional dividends without any legal ground. Accordingly, the Plaintiff suffered damages equivalent to KRW 120 million. ② A public official belonging to the above auction court of the Republic of Korea made the said second correction illegally against the remaining Civil Execution Act, which neglected his duty of care, and thereby inflicted damages equivalent to KRW 120 million on the Plaintiff by making the instant additional dividends.

(4) Therefore, Defendant Republic of Korea, Defendant 2, and Defendant 3 are jointly and severally liable to pay to the Plaintiff KRW 120 million as damages or unlawful gains.

B. Determination

(1) In a case where the court of auction established a provisional disposition prohibiting a disposal of dividends to be distributed to the mortgagee, and then cancelled the contract to establish the right to collateral security after depositing the dividends, if the payment of the deposited dividends is uncertain, the distribution procedure has not yet been completed until the deposited dividends are paid to the depositor. Therefore, it cannot be readily concluded that the distribution procedure has been completed definitely. Since the creditor's revocation does not affect the creditor's revocation and the legal relationship with the debtor and the beneficiary, the property restored to the debtor by the creditor's revocation of fraudulent act and the claim for restitution is treated as the debtor's responsible property, and the debtor does not acquire any right directly to the property, it is reasonable to additionally distribute the dividends to the other creditors who lawfully distributed the deposit in the auction procedure. Accordingly, the seizure and collection order regarding the right to claim the payment of the deposit is only effective only in the surplus remaining after the distribution procedure is distributed in the additional distribution procedure (see, e.g., Supreme Court Decision 200Da53014, Apr. 6, 2007).

(2) We look back to the instant case. As seen earlier, as seen earlier, ① there was in an uncertain state in which payment of dividends against Nonparty 3, etc. was made by deposit of dividends due to the filing of a lawsuit of demurrer against distribution, the decision on provisional seizure of claims against the dividends, etc. by Defendant 3; ② part of each of the above contract establishing a mortgage was revoked as a fraudulent act; ③ the Plaintiff’s lawsuit of objection against the distribution has the nature of restitution of a lawsuit claiming cancellation of the above right; thus, the distribution schedule can only be corrected by a final judgment in the instant case of objection against the distribution; and it cannot be corrected again by the final judgment in the instant case of claim for cancellation of the right to claim the above right to claim the distribution; but in light of the different facts between the scope of the Plaintiff’s claim for cancellation of the right to claim the payment of dividends and the creditors and the amount of claims leading to the objection to the said objection, the court’s correction of the instant case is justifiable in view of the following facts: (a) the above lawsuit of objection against the distribution has the nature of part of the claim for cancellation; and (b) Article 407).

(3) Meanwhile, the judgment on the claim for cancellation of the above right to collateral security became final and conclusive prior to the judgment on the above lawsuit of demurrer against distribution, and accordingly, the above auction court should have corrected the distribution schedule by reflecting the final and conclusive judgment on the claim for cancellation of the above right to collateral security along with the final and conclusive judgment on March 5, 2008. However, it was true that the above second correction was made by reflecting the final and conclusive judgment on July 8, 2009 in the above case of demurrer against distribution and reflecting the final and conclusive judgment on the claim for cancellation of the above right to collateral security, but the above second correction was not illegal due to delay in such procedure, and it cannot be said that any property damage was inflicted on the plaintiff.

(4) Ultimately, Defendant 2 was subject to the right to collateral security, which was partially revoked by fraudulent act, and Defendant 3 was legally paid additional dividends based on the right to collateral security of a long-term system that does not have been revoked, and the Plaintiff who acquired the claim of Nonparty 3 by the mortgagee 3 was merely unable to receive dividends due to the priority order of the transferee of the senior claim. Therefore, this part of the Plaintiff’s assertion is without merit.

3. Judgment on the assertion of defects in auction and distribution procedures

A. The plaintiff's assertion

(1) The above auction court deprived the Plaintiff of the opportunity to raise an objection by failing to give any notice of KRW 120 million out of the dividends against Nonparty 3 on the date of distribution for the above second correction and the instant additional distribution.

(2) The above auction court neglected the deposit number in the process of paying each of the dividends deposited with a separate deposit number to the right holders, such as Nonparty 3, Nonparty 5, and Nonparty 4, and paid them to the right holders by mixing each of the above dividends.

(3) Since such defects in the auction and distribution procedure are directly related to the Plaintiff’s property damage equivalent to KRW 120 million, the Defendants are jointly and severally liable to pay KRW 120 million to the Plaintiff.

B. Determination

In light of the above facts and evidence, it was revealed that the above auction court did not give any notice to the plaintiff on the date of distribution for the additional distribution of this case, i.e., the above second correction and the subsequent additional distribution as seen earlier. However, even if the plaintiff filed a lawsuit of demurrer against the distribution after the plaintiff made a statement of objection, the plaintiff's objection can not be accepted. ② The above auction court paid each of the above dividends to the right holder regardless of the deposit number in the process of paying the dividends to the right holder separately deposited with the deposit number by the deposit number by the non-party 3 and the non-party 3. However, since the above auction court paid only the amount to be received by each right holder, it did not infringe the rights of the plaintiff or non-party 3 (the above first and second correction of the above 1, 258, 739 won to the non-party 3 and the above additional distribution of this case to the non-party 168 billion won to the non-party 16.75 billion won to the non-party 1605 billion won to the above auction deposit.75 billion won to the plaintiff 16.

4. Conclusion

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

[Attachment]

Judges Yellow-Hahn (Presiding Judge) Kim Dong-dong