In the case of a double auction application, whether the completion period to demand a distribution in the previous auction application case is applied as is (affirmative in principle) and whether the subsequent auction applicant may receive a dividend in the case of an application for an auction after the completion period to demand a distribution in the previous auction application case (negative in principle)

In the event of a double auction application, unless the date of the completion of a request for a distribution in the preceding auction application case has been postponed, or the procedure has been continued in accordance with the auction case filed subsequent to the withdrawal or cancellation of the preceding request for auction, the completion period of a request for distribution in the preceding auction application case shall be applied as is. Meanwhile, in the case of a request for a double auction application, when such request for auction has been filed by the deadline for a request for a distribution in the preceding auction application case, such requester shall be treated as a creditor entitled to receive a distribution, but in the case of a request for auction after the deadline for a request for a distribution in the preceding auction application case, if such request for auction has been filed after the deadline for a request for a distribution in the preceding auction application case, the subsequent requester shall not be entitled to a distribution even if such request for a double auction is accepted.

Articles 87 and 148 of the Civil Execution Act

Plaintiff (Attorney Lee Sung-jin, Counsel for the plaintiff-appellant)

New Bank Co., Ltd. (Law Firm Jinjin, Attorneys Yoon-young et al., Counsel for the defendant-appellant)

March 13, 2009

1. From among the distribution schedule prepared by the above court on August 16, 2007, the amount of 50,978,831 won against the defendant among the distribution schedule prepared by the above court on the procedure of voluntary auction No. 6091, 2005, 2006, 25167 (Dual), shall be corrected to 21,60,000 won, and the amount of 0 won against the plaintiff to 29,378,831 won, respectively.

2. The costs of lawsuit shall be borne by each person;

The same shall apply to the order.

1. Basic facts

A. On October 27, 2001, the defendant (the defendant bank prior to the merger with the defendant) entered into a loan transaction agreement with the loan limit of 10 million won under the pretext of general loan loan, and on October 31, 2001, a loan transaction agreement with the loan limit of 18 million won under the pretext of general loan loan. On October 30, 2001, between the plaintiff and the plaintiff on October 30, 2001, a mortgage contract with the loan amount of 21.6 million won was concluded between the plaintiff and the defendant on October 30, 201, a mortgage contract with the loan limit of 18 million won with the loan limit of 18 million won. The mortgage contract was a comprehensive collateral for the plaintiff to secure "all obligations currently and future owed by the plaintiff to the defendant." The defendant completed the registration of the establishment of a mortgage with respect to the above apartment.

B. On March 18, 2005, the registration of the entry of the decision to commence auction was completed on March 18, 2005 with respect to the subject matter of auction by a compulsory auction application by the bankrupt Korea Securities Co., Ltd., and the date of the completion of the above auction procedure was set on July 6, 2005.

On April 21, 2005, the Defendant submitted a claim statement as a mortgagee on April 21, 2005. The details were totaling KRW 27,958,199, interest KRW 74,994.

C. After that, on June 25, 2006, the Defendant filed an application for voluntary auction with the Ulsan District Court Decision 2006Hu25167, Jun. 25, 2006, the Defendant asserted that the Defendant had a claim against the Plaintiff, and that on October 27, 2001, the Defendant stated the claim amount of KRW 10,546,491 based on a loan agreement and interest of KRW 1,838,132 (total KRW 12,384,623), and on October 30, 201, the claim amount of KRW 18,886,603 (total KRW 21,86,603) as the “2,160,000,000, the maximum debt amount” of KRW 206,606, Oct. 26, 2006 as the “206 auction procedure” (Evidence 2005, supra).

On the other hand, on September 28, 2006, the defendant submitted a report on the right and a request for distribution of the above real estate to the Busan District Court 2006Kadan20056 on September 28, 2006, the provisional attachment of KRW 12 million was executed, and on October 11, 2006, the defendant submitted a report on the right and a request for distribution along with a copy of the register and a copy of the decision on provisional attachment attached.

After that, on July 26, 2007, the Defendant submitted a claim statement as “a creditor holding concurrent office as a collateral mortgagee”. The details were 39,91,210 won (39,438,970 won if the application cost is excluded) including the principal amount of 28,546,491 won, interest 10,892,479 won, and the application cost of 472,240 won (10,546,491 won + interest 10,546,491 won as of July 23, 2007 + interest 3,949,742 won as of July 24, 2007 + the principal amount of 14,628,628 won as of July 24, 2007 to August 16, 207 + the principal amount of 30,614,741,749,740,741.209.

D. Of the amount to be distributed actually on August 16, 2007, the above court prepared a distribution schedule with the Defendant, who is the right to collateral security, to the National Bank, the right to collateral security, out of the amount to be distributed actually on August 16, 2007, KRW 3,648,141, which is 100% of the amount to be distributed, KRW 38,978,831, which is 98.83% of the maximum debt amount of the Defendant, the right to collateral security, the right to collateral security, the right to collateral security, the second and fourth priority, and KRW 38,978,831, which is 100% of the amount to be claimed for provisional seizure, to the Defendant, the right to request provisional seizure, the right to request provisional seizure, the right to request provisional seizure, and KRW 55,714,749, respectively, to the bankruptcy trustee of the bankrupt securities company, the right to request provisional seizure (the sum of the amount to be distributed as the Defendant under the above distribution schedule is KRW 2584,496,4917.

Accordingly, the Plaintiff raised an objection to the total amount of KRW 17,378,831 out of the amount of dividends against the Defendant as a right to collateral security and KRW 12 million against the Defendant as a right to a provisional seizure.

[Basis] Facts without dispute, Gap's evidence, Gap's evidence, 12, 14, 15, Gap's evidence 1 to 3, Eul's evidence 1 to 1, 2, Eul's evidence 2 to 4, the purport of the whole pleadings, and the purport of the whole pleadings

2. Determination:

A. The plaintiff's assertion

The auction of this case is a case of the preceding case, Ulsan District Court 2005No. 6091, which was conducted through double auction with the Seoul District Court 2006 No. 25167, which is the preceding case, and the execution procedure of the preceding case should be followed. The decision to commence the auction of the preceding case is March 18, 2005, and the completion period for the demand for distribution is July 6, 2006. The defendant did not file an additional report on the right and a request for demand for distribution by the date of the completion period for the demand for distribution of the preceding case except for the completion of the establishment of a mortgage over the maximum claim amount of KRW 21.6 million on October 30, 201, which is the provisional seizure right holder, and the amount distributed to the defendant exceeding the maximum debt amount of the above right to demand distribution and the amount of dividends by 300,000 won under the provisional seizure claim amount of KRW 389,789,976.

B. Status of the applicant for double auction

(1) In the case of a double (du) auction application, the completion period for a demand for distribution under the preceding auction application case shall be applied as is, unless the date of the completion period for a demand for distribution in the preceding auction application case has been extended, or the procedure has been continued according to the auction case filed subsequent to the withdrawal or cancellation of the preceding auction application case (Article 87(3) of the Civil Execution Act).

On the other hand, where there exists a request for double auction, the said request for auction shall be treated as the creditor entitled to receive a distribution, but if such request for auction was filed after the completion date of the request for a distribution in the prior auction case, the said requester cannot receive a distribution even if the request for double auction was accepted (Article 148 of the Civil Execution Act) unless he falls under Article 148 Subparag. 2 (a creditor who has made a request for distribution by the completion date of the request for distribution), Article 3 (a creditor of provisional seizure registered before the first decision on commencement of auction is registered as a creditor of a provisional seizure), and Article 4 (a creditor who has been registered before the first decision on commencement of auction as a mortgage, a right to preferential reimbursement, and a right to claim a distribution

(2) Date of the completion period to demand a distribution in this case and the validity of the defendant's demand for distribution

(A) According to the above facts, the completion period for the demand for distribution in the case No. 2005, the prior auction case No. 6091, the prior auction case in this case, was July 6, 2005, and the defendant applied for voluntary auction as a mortgagee on June 25, 2006, around 2006, around 2516. The above court decided on August 28, 2006 that the commencement period for the demand for distribution was November 29, 2006. If the execution court extended the completion period for the demand for distribution as set by July 6, 2005, the prior auction case No. 2005, the above prior auction case, or did not withdraw or revoke the above prior auction case, the completion period for the demand for distribution in the case that the defendant applied for voluntary auction is also applicable.

Therefore, the date of completion of the demand for distribution under 2006, 25167, which is the above double auction case, shall be July 6, 2005 (the date of completion of the demand for distribution under 2006, 25167, which is the above double auction case, shall not be legally meaningful as the date of completion of the demand for distribution under 2006, which is the above double auction case), and according to the legal principles and facts as seen earlier, the defendant applied for the subsequent auction after the date of completion of the demand for distribution of the preceding auction case, so the defendant shall be legally entitled to receive dividends only in cases falling under

(B) 12 million won distributed as the person holding the provisional attachment

Article 148 Item 3 of the Civil Execution Act applies to those registered prior to the registration of the first decision to commence the auction among provisional seizure, and those registered after the registration of the first decision to commence the auction shall be limited to those which demand a distribution by not later than the completion period of the first decision to demand a distribution, and shall be able to receive a dividend.

However, as seen earlier, since the defendant executed a provisional seizure of 12 million won on September 28, 2006, which was after the decision to commence the auction of the preceding auction case, on the object of the auction on September 28, 2006, the provisional seizure of 12 million won was executed, the creditor who does not fall under Article 148 subparagraph 3 of the Civil Execution Act is obvious, and the defendant made a report on the right and demand for distribution on October 11, 2006 based on the above provisional seizure, so it is obvious that he made a demand for distribution after July 6, 2005, which is the completion period to demand the distribution of the preceding auction case, so it shall not be deemed a creditor entitled to receive a distribution under Article 148 of the Civil Execution Act. Nevertheless, it is erroneous that the dividend court distributes the amount of 12 million won to

(C) The portion distributed in the fourth order (the maximum amount of claims KRW 17,378,830 exceeding the maximum amount of claims KRW 21.6 million).

1) As seen above, on July 26, 2007, the defendant submitted a claim statement stating "28,546,491, interest 10,892,479, the sum of "272,240," and "39,91,210 won" (39,438,970,000,000,000 won) as "the creditor holding a collateral security right concurrently with the mortgagee" on July 26, 2007. Since the defendant's status as the person holding a collateral security had already been registered before the completion date of the demand for distribution in the preceding case, the defendant's status as the person holding a collateral security right has already been registered before the completion date of the demand for distribution in the preceding case. Thus, within the scope of the maximum debt amount, regardless of whether the defendant filed a decision to commence double auction due to the defendant's request or a submission of the statement of claims, it is not erroneous for the defendant to have the right to demand distribution within the extent of the maximum debt amount.

2) As to this, ① The Defendant asserts to the effect that the above KRW 17,378,830 was distributed as a general creditor. However, the person entitled to demand a distribution shall not accept the Defendant’s above assertion without any need to examine other issues, as to whether the Defendant separately holds the title of execution against the creditor with an executory exemplification, the creditor who made a provisional seizure subsequent to the registration of the decision to commence the distribution (Provided, That as seen earlier, it shall be limited to the case where a demand for distribution has been made by the completion date of the request for distribution), the Civil Act, the Commercial Act, and other Acts (Article 88 of the Civil Execution Act), the creditor who has the right to demand a preferential reimbursement (Article 88 of the Civil Execution Act), the above KRW 17,378,830, and

② On the other hand, the defendant submitted a claim statement as a mortgagee of the object of auction on April 21, 2005. In an auction procedure to enforce the right to collateral security, even if the applicant creditor stated the specific secured claim in the application for auction and indicated it as the claim claim, if there are other claims as the secured claim of the pertinent right to collateral security, the other claims may be added to the claim claim, or exchanged the initial claim with other claims. The defendant's right to collateral security against the plaintiff is a comprehensive collateral for securing all the plaintiff's obligations, and is also included in the secured claim. Thus, the defendant's right to report on the right as of October 11, 2006 and the demand for distribution were changed merely as the secured claim was legitimate.

However, even if it is possible to add or modify the claims stated in the application for auction as alleged by the Defendant, it is reasonable that the amount of the changed claims can not be distributed to “excess amount if the claims stated in the application for auction exceed the claims stated in the application for auction,” and as seen earlier, the Defendant stated the claim amount of KRW 21.6 million at the time of applying for auction at around 2006taba25167, and as such, it cannot be apportioned to the amount exceeding the claim amount of KRW 21.6 million (In addition, from the dividend of this case where other creditors than the Defendant exist, even if there is no demand for distribution, the Defendant cannot be viewed as a creditor entitled to receive a distribution as a matter of course even if there is no demand for distribution with regard to the amount exceeding the maximum claims amount of the right to demand distribution, and the submission of a request for auction or a statement of claim for distribution with respect to the amount exceeding the maximum claims amount of general creditors is not sufficient. However, as seen earlier, the Defendant’s legitimate demand for distribution under the Civil Execution Act or other requirements are not satisfied.

(D) Sub-committee

Ultimately, out of the amount of dividends against the defendant, the part exceeding the maximum debt amount of 21.6 million won, which can be apportioned as a mortgagee, is all illegal dividends.

3. Conclusion

Therefore, among the distribution schedule prepared by the above court on August 16, 2007, the amount of 50,978,831 won against the defendant should be 21,60,000 won, and the amount of 0 won against the plaintiff shall be 29,378,831 won, among the distribution schedule prepared by the above court on the voluntary auction procedure of Ulsan District Court 2005,6091 and 2006, 25167 (Dual). However, since the litigation procedure of this case is delayed due to the delay of several times for the purpose of the plaintiff's claim and the cause of the claim, the litigation cost shall be determined to be borne individually.

Attorney Demotion