Whether Article 368(1) of the Civil Act on simultaneous distribution is applicable in case where a junior mortgagee on land takes place before changing the sole collateral security on land to the joint collateral security on land to the joint collateral security under the Factory Mortgage Act (affirmative)

Article 368(1) of the Civil Act provides that, in case where a mortgage has been created on several immovable properties as collateral of the same claim, if the proceeds of the auction are to be distributed at the same time, the apportionment of the claim shall be set in proportion to the proceeds of the auction of each immovable property. The above provision applies and applies mutatis mutandis to the case where the proceeds of the auction of the land and buildings which are the object of the mortgage under the Factory Mortgage Act, and of the machinery and apparatus installed therein are to be distributed at the same time, not only to several immovable properties, but also to the case where the senior mortgagee acquires the right to collateral on the land at the time of the acquisition of the right to collateral and the date of the acquisition by changing the right to collateral to the joint collateral on the land belonging to the factory under

Article 368(1) of the Civil Act

Industrial Bank of Korea (Law Firm Shin & Yang, Attorney Kang Jae-hoon, Counsel for defendant-appellant)

National Bank of Korea (Attorney Yang Young-young, Counsel for defendant-appellee)

Gwangju High Court Decision 97Na3520 delivered on October 17, 1997

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

The court below decided on June 28, 1993 that the defendant's right to collateral security on 10, 300,000 won for factory site owned by the non-party 1 corporation (hereinafter referred to as the "non-party 1 corporation"), the defendant's right to collateral security on 20,000 won for 10,000 won for 20,000 won for 30,000 won for 20,000 won for 10,000 won for 30,000 won for 10,000 won for 30,000 won for 20,000 won for 30,000 won for 20,000 won for 10,000 won for 30,000 won for 10,000 won for factory site for 30,000 won for 30,000 won for 10,000 won for 30,000 won for factory site for 9.

According to the records, the defendant's claims for loans that the defendant acquired with respect to the non-party company are all secured by the above multiple collateral security rights, and there is no violation of the rules of evidence and there is no violation of the rules of evidence.

Article 368(1) of the Civil Act provides that, in case where a mortgage was created on several immovable properties as collateral of the same claim, if the proceeds of the auction are distributed at the same time, the apportionment of the claim shall be applied in proportion to the proceeds of the auction of each immovable property. The above provision applies and applies mutatis mutandis not only to several immovable properties, but also to the case where the proceeds of the auction of the land and buildings which are the object of the mortgage under the Factory Mortgage Act and of machinery and apparatus installed therein are distributed at the same time. In this case, as seen above, the above provision applies and applies mutatis mutandis to the case where the defendant acquires a separate collateral security right on the land between the time when he acquired a separate collateral security right on the land and the time when he acquired a separate collateral security right by changing it to a joint collateral security right on the same land and the land, machinery and apparatus belonging to the factory under the Factory Mortgage Act, and there is no error in the misapprehension of legal principles as to the interpretation of Article 368(1) of the Civil Act.

All of the grounds of appeal cannot be accepted.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)