Where a public interest security interest is created on the property created by the security, such security shall take precedence.

In the company reorganization procedure, Article 209 (2) of the former Company Reorganization Act that provides that priority shall be given to a person who receives a repayment from the company's general property; it does not mean that a person receives a preferential repayment from the proceeds from the auction of a specific property where a security is created; and where a security interest has been established on the property where a security interest has been established, such security interest shall prevail.

2012 Gohap 2149 Demurrer against distribution

AAA 21 Securitization Specialized Company

NewB 3 others

December 7, 2012

February 1, 2013

1. Of the distribution schedule prepared by the said court on August 30, 2012 with respect to the distribution procedure distribution procedure case of Changwon District Court Masan District Court 2012ta71297, the amount of dividends to Defendant NewB is KRW 000, the amount of dividends to Defendant CC is KRW 000, the amount of dividends to Defendant 500, and the amount of dividends to Defendant 5 and the amount of dividends to the manager of Defendant 5 D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D DD, shall be adjusted to KRW 00, respectively, and the amount to the Plaintiff shall

2. The costs of lawsuit are assessed against the Defendants.

The same shall apply to the order.

1. Facts of recognition;

The following facts are found to be without disputes between the plaintiff and the defendant NewB, thisCC, and the Republic of Korea, and to be recognized by comprehensively taking into account the respective descriptions and arguments in Gap 1 through 9, and the administrator ParkE of the defendant Rehabilitation Company DNA shall be considered to have led to confession:

A. On January 2005, the Industrial Bank of Korea extended a loan to DDR Co., Ltd., and around that time set the right to collateral security of KRW 000,000,000 for factory and its ground-based factory buildings (hereinafter “the instant secured real property”) as joint collateral, and around August 2006, extended a loan to the said company, and around that time set the right to collateral security of KRW 000,000 with the maximum debt amount as joint collateral.

B. After that, on February 3, 2010, DDR Co., Ltd. was decided to commence rehabilitation procedures on February 3, 2010 by Changwon District Court 2010, and ParkE was appointed as the administrator of the rehabilitation company DDR on the same day, and on August 27, 2010, the management administrator ParkE Co., Ltd. (hereinafter referred to as the "Defendant Park EE") submitted the rehabilitation plan to the above court and received a decision to authorize the rehabilitation plan on August 27, 2010, and the Industrial Bank of Korea held the sacrifice security interest of the instant secured real estate (= the principal amount of KRW 000 + interest of KRW 00 after the commencement) in the sacrifice procedure.

C. On June 28, 2011, the Industrial Bank of Korea transferred the right of loans and its security rights related to the instant real estate to the Plaintiff, and notified Defendant Park E of the transfer of the assignment.

D. Meanwhile, when the instant secured real estate was incorporated into a road zone for national highways constructed by the Busan Regional Land Management Agency, the Plaintiff deposited KRW 795,043,983 as compensation for losses with the Changwon District Court in 2012, when it received a seizure and collection order (Seoul District Court Branch Branch Branch 201, 4805, Doz. 4805) against the said company's land compensation claim against the Republic of Korea on November 21, 201, and the third obligor of the above seizure order (the Republic of Korea, and the Busan Regional Land Management Agency) (the Changwon District Court Branch 2012, Ma2888).

E. On August 30, 2012, the above court: (a) as a collection authority having the first priority of the amount to be distributed out of the amount to be actually distributed on the date of distribution of the above compensation procedure (Cap. 200 won in Changwon District Court Decision 2012Ma71297) implemented on August 30, 2012; (b) as a person holding the first priority of the amount to be paid out of the amount to be actually paid out on the date of distribution; (c) 000 won in the amount to be paid on behalf of the debtor; and (d) 00 won in the amount to be paid by the JJ, the highest wage obligee; and (d) 2, the person holding the first priority of the collection authority, who was the wage obligee, was the person holding the right to pay, and (e) 000 won in the Changsi City (Masan District Court Decision 200 won, the person holding the attachment authority, and (e) the Plaintiff did not receive dividends.

F. On the aforementioned date of distribution, the Plaintiff raised an objection against the Defendants on the amount of distribution, and filed the instant lawsuit on September 5, 2012.

2. The assertion and judgment

A. The parties' assertion

1) The plaintiff's assertion

The plaintiff participated in the above distribution procedure as a subrogation right holder, and according to the plan for sacrifice of DDR corporation, which was authorized by the Changwon District Court, when the secured creditor's collateral is jointly collected, and the administrator does not recover the collateral by receiving compensation or compensation, the administrator is required to pay the rehabilitation security right early according to the order of the security right established in the collateral. The defendants' claims are obvious that they are subordinate to the plaintiff. Thus, the distribution schedule of the distribution procedure case should be revised as the order.

2) Defendant NewB, thisCC, and Korea’s assertion

The above order of seizure and collection (the Changwon District Court Changwon District Court Branch 2011TTT 4805) received by the plaintiff is null and void since the rehabilitation procedure is in progress and it is not possible for the plaintiff to file a lawsuit of demurrer against distribution, and the plaintiff cannot exercise the right to preferential payment of compensation for losses because it cannot be seen as exercising the right to subrogation as a mortgagee. Furthermore, according to Article 58 (1) of the Debtor's sacrifice and Bankruptcy Act, when the decision of commencement of rehabilitation procedure is made, compulsory execution based on the rehabilitation security right cannot be conducted, and according to Articles 141 (2) and 131 of the same Act, it cannot be performed without following the provisions of the rehabilitation plan after the commencement of rehabilitation procedure, and the plaintiff cannot receive reimbursement through the above distribution procedure, except as otherwise provided for in this Act.

B. Determination

1) First of all, since the Plaintiff’s claim attachment and collection order against DworkD without standing as the parties is invalid, the Plaintiff cannot be deemed as exercising the subrogation right as the mortgagee, and it is possible to bring an action of demurrer against the distribution, and the proviso of Article 342 of the Civil Act requires that the mortgagee should seize money or other things to be received by the mortgagee in order to exercise the subrogation right. The purport of the provision is to preserve the specificity of the claim which is the object of subrogation and to avoid causing unexpected damages to the third party at the same time, and to protect the effectiveness of the claim’s subrogation and to protect the third party’s claim against the above third party as the result, the mortgagee’s claim for distribution order cannot be seen as having exercised the subrogation right, and the method of exercising that right cannot be seen as having been exercised by the obligee, and the method of exercising that right cannot be seen as having been exercised by the obligee’s claim for distribution order under Article 273 of the Civil Administrative Court, and that the Plaintiff’s claim for distribution order under Article 271 of the Civil Court Act cannot be seen as the purport of this Court.

2) The following. The plaintiff, which is a rehabilitation secured creditor, is unable to enforce compulsory execution based on rehabilitation security rights pursuant to Article 58(1) of the Debtor Rehabilitation and Bankruptcy Act, Article 141(2) of the Act, and Article 131, and the plaintiff cannot perform the act of extinguishing claims without complying with the sacrifice plan after the commencement of rehabilitation procedures. Thus, the plaintiff's claim cannot be satisfied with priority over the defendants through the above distribution procedure. Article 131 of the same Act provides that "No act of extinguishing claims, such as reimbursement or reimbursement, shall be performed without compliance with the rehabilitation plan after the commencement of rehabilitation procedures," and all of the arguments mentioned above should be considered 0 years after the commencement of rehabilitation procedures for the defendant's new rehabilitation security rights." This legal principle applies to the defendant's new rehabilitation security rights to 20 years old rehabilitation security rights to 30 years old rehabilitation security rights which were established by Changwon District Court, and the compensation or subrogation plan for the defendant's new rehabilitation security rights to 30 years old rehabilitation security rights after the commencement of rehabilitation procedures.

Therefore, the above defendants' arguments against them are not accepted.

3) In full view of the above circumstances, the instant dividends are distributed to the Defendants in preference to the Plaintiff and are illegal, and the amount of the dividends to the Plaintiff in the instant dividends distribution schedule should be adjusted to KRW 000,00, within the scope of the right to sacrifice security, and KRW 000,000, the amount of dividends to Defendant CC, and KRW 00,000, the amount of dividends to Defendant 1 and the amount of dividends to Defendant 2, and KRW 00,00,000 and KRW 00,000,000,000,000,000 won, respectively.

3. Conclusion

Therefore, the plaintiff's claim against the defendants seeking correction of the distribution schedule of this case is with merit, and it is so decided as per Disposition.