Demurrer against distribution

In a case where the clause stating the establishment of a comprehensive collateral security in a mortgage contract, the existence and contents of the declaration of intent must be recognized in accordance with the language.

National Tax Collection Act

2015 Gohap 51637 Demurrer

AAA financing corporation

BB City

CCC

DDD City

Korea

EE Insurance Corporation

F Bank Co., Ltd.

JGG

HH Industries Co., Ltd.

September 4, 2015

September 18, 2015

1. Of the dividend table prepared by the above court on March 26, 2015, the dividend amount of the Plaintiff 436,014,244 won, 74,085,085,194 won, the dividend amount of the Plaintiff 247,060 won, the dividend amount of the Defendant Mediation 31,989,506 won, the dividend amount of the Defendant DaD 953,560 won, the dividend amount of the Defendant DaD 24,432,920 won, the dividend amount of the Defendant Do 24,596,957 won, the dividend amount of the Plaintiff ESE Insurance Corporation 26,07,12,954,70 won, and the dividend amount of the Defendant ES24,537,920 won, the dividend amount of each of the Defendant PE26,201,37,457,41,257,257, and 947,257,37, etc.

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

Cheong-gu Office

As indicated in the order (of the claims, the amount of KRW 4,84,017 for Defendant B B’s dividends of KRW 247,060, KRW 456,96,957, and KRW 168,424,189 for Defendant FF Bank Co., Ltd. is the amount of dividends for Defendant FF Bank Co., Ltd., and KRW 26,020,118, KRW 142,404,071, and KRW 61,617,295 for Defendant HH Industries Co., Ltd. is the amount of dividends of KRW 9,519,353,52,097,942).

1. Facts of recognition;

A. Between KRJ and K Bank Co., Ltd. (hereinafter “K Bank”) on August 18, 2005

The loan contract was concluded to lend KRW 40,000,000 (hereinafter referred to as "the first loan of this case").

B. On July 18, 2008, theJ concluded a loan contract with the K Bank to lend KRW 540,000,000 (hereinafter referred to as the "second loan of this case") and the J and AL between the K Bank and the K Bank on July 18, 2008, concluded a mortgage contract with respect to each real estate listed in the separate sheet Nos. 1 and 2 of the separate sheet Nos. 3, 4, and 5 of the J, which were owned by the KJ at the time, as well as each real estate listed in the separate sheet No. 3, 4, and 5 of the separate sheet No. 3, which were owned by the KJ (hereinafter referred to as the "first collateral mortgage of this case"). On the same day, the registration of the establishment of mortgage of each of the above real estate was completed in the nearest maximum debt amount of KRW 702,000

다. 이JJ, 조CC, 이MM은 2008. 8. 14. KK은행과 사이에, 당시 조CC 소유였건 별지 목록 제1, 2항 기재 각 부동산(위 각 부동산은 2008. 8. 14. 그 소유권이 정LL에서 조CC으로 이전되었다), 이JJ 소유였던 별지 목록 제3, 4, 5항 기재 각 부동산 및 이MM 소유였던 BB시 PP읍 QQQ리 28-8 공장용지 2,331㎡ 및 그 지상 공장에 관하여 근저당권설정계약을 체결하였고, 같은 날 위 각 부동산에 관하여 KK은행 앞으로 채권최고액 일본국법화 101,600,000엔의 근저당권설정등기를 마쳐 주었다

(hereinafter referred to as "the second priority mortgage of this case"). The J concluded a loan contract between KR Bank and KR Bank on August 19, 2008 with a loan agreement of 78,900,000 UN (hereinafter referred to as "the third party loan of this case").

(d) The JJ between K Bank and K Bank on January 13, 2009, set forth in its Schedule 6 to its Schedule of Justice.

11) After entering into a mortgage agreement with the purport of adding each of the real properties mentioned in Paragraph 1 as the collateral of the first collateral mortgage of this case, the registration of preservation of ownership of each of the above real properties was made on January 14, 2009, and after completing the registration of creation of mortgage of the nearest maximum debt amount of KRW 702,00,000 in the future of KK Bank.

E. In addition, on January 13, 2009, the J entered into a contract for the creation of additional collateral between the K Bank and the K Bank to add each of the real estate listed in [Attachment List Nos. 6 through 11 as the collateral for the second collateral mortgage of this case, and completed on January 14, 2009 the establishment registration of the mortgage of 101,60,000 United Nations, regarding each of the above real estate, in the future of the K Bank, the maximum debt amount was 101,60,000.

F. On December 16, 2011, KK Bank transferred its claim for loans Nos. 1, 2, and 3 to a limited company specializing in NNT third-party securitization, and sent a notice of assignment of claims to J as content certification, and the said notice reaches J around that time.

G. A limited liability company specialized in NNTG filed an application for the auction of real estate rent under the DD District Court 2013 Ma60572 with respect to each real estate listed in the separate sheet at KRW 1,762,937,680, and the said court rendered a voluntary decision to commence the auction of each real estate listed in the separate sheet on December 16, 2013 (hereinafter “instant auction”).

H. On August 26, 2014, the NNT Specialized Company transferred the instant loans Nos. 1, 2, and 3 to the MaximumO and notified thisJ of the assignment of claims around October 2014.

I. On October 10, 2014, with respect to each real estate listed in the separate sheet, the supplementary registration of the transfer of the right to collateral security was completed with the purport that the first and second collateral mortgages in the instant case were transferred from KK Bank to the NNTT specialized company for NNT securitization, and on the same day, the supplementary registration of the transfer of the right to collateral security was completed with the purport that the first and second collateral collateral mortgages in the instant case were transferred to NNT to the NA from the limited company specialized in NNT securitization.

E. As to each real estate listed in the separate sheet, the registration of the instant collateral security right was completed on October 10, 2014, the claim amount of 702,00,000,000 won for each real estate listed in the separate sheet, and the registration of the instant collateral security right, which is the debtor leastO, and the creditor RR Savings Bank, and the registration of the instant collateral security right was completed on the same day.

(k) On January 22, 2015, the registration of the right to collateral security of this case was completed with respect to each real estate listed in the separate sheet, the claim amount of which was KRW 702,00,000,000, the debtor leastO, and the creditor of this case. On the same day, the registration of the right to collateral security of this case was completed with respect to each real estate listed in the separate sheet.

(l) In the instant auction procedure, the executing court held on March 26, 2015 the date of distribution and the execution expenses.

Of the amount to be actually distributed to Defendant BB, the holder of the delivery (relevant tax) who is the first priority among the amount of KRW 1,656,018,698, the amount to be actually distributed to Defendant BB shall be KRW 10,591,340, KRW 84,630, and KRW 901,257,534, and KRW 436,014,244, and KRW 247,060, KRW 5060, and KRW 31,989,506, and KRW 953,560, and KRW 560,00 to Defendant CB, the holder of the distribution (tax) who is the second priority, shall be granted to Defendant BB, the holder of the distribution (tax) who is the second priority of KRW 953,560,00, KRW 9525,294, Defendant B57, and Defendant CB, the holder of the distribution (tax office) to Defendant DDD.

26,020,118 won, lessee (determined date), who is the fifth and fifth and fifth-class lessee, Defendant HaH Industries Co., Ltd., HaHHHH Industries Co., Ltd., 9,519,353 won, 142,404,071 won, and 52,097,942 won, were distributed to Defendant FF Bank Co., Ltd., Defendant HaHHHH Industries Co., Ltd.

(m) The Plaintiff appeared on the date of distribution of the instant auction, and raised an objection against the amount of distribution to the Defendants subordinate to the Plaintiff, and thereafter filed the instant lawsuit on April 2, 2015, one week thereafter.

[Based on the recognition] between ○○ and Defendant BB, DD Si, Korea, EEE Insurance Corporation, FF Bank Corporation, HHH industry corporation: the absence of dispute, Gap evidence Nos. 1 through 4, Gap evidence Nos. 6 through 13 (including each number), and the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

1) Plaintiff

The first and second collateral mortgages of this case are comprehensive collateral mortgages of this case, and the secured debt of this case Nos. 1, 2, 3

The total sum of the principal and interest of loans Nos. 1, 2, and 3 of this case is included in loan claims.

2. Inasmuch as the amount of KRW 1,647,316,80 (as of November 28, 2013) of the first and the second secured debt of the instant case exceeds the maximum debt amount of KRW 1,647,316,80 [the maximum debt amount of the first secured debt of the instant case + the amount of KRW 945,316,80 (101,60,00 x 9.300 x 9.3043, 9.30443, 205. 467) of the instant secured debt of KRW 1,647,316,80,00, the remaining amount of the secured debt of KRW 467,475,7467,7465,7467,7467,767, the remaining amount of the remaining secured debt of KRW 467,575,767,7467,575,767,7467,7,767, the remaining amount of the dividends secured debt of the instant case is the remaining amount of KRW 1,571,647.

2) Claims by Defendant BB, Korea, EEE Insurance Corporation, FF Bank Corporation, HH Industries Corporation, and HH Industries Corporation

A) The first collateral mortgage of this case covers only the claim for the second loan of this case, and this company

Since the second collateral mortgage only covers the claim for the third loan of this case, the first and second collateral mortgage of this case is not a comprehensive collateral mortgage, such as the plaintiff's assertion.

B) Claim secured by the first and second collateral security of the instant case is auctioned on December 14, 2010 by the K Bank.

was determined by the Office.

C) Therefore, the distribution of the instant auction is lawful.

B. Determination

1) The record prepared at the time of concluding a contract to establish a mortgage with a bank and a mortgagee of a mortgage

In a case where the so-called comprehensive collateral security agreement that guarantees all obligations arising from a bank's credit transaction is written, it shall be deemed a disposal document even if the contract takes the form of a standardized contract printed in the same word. Thus, in a case where the authenticity is recognized, barring special circumstances, such as the bank's act of acquiring collateral is deemed to fall under the same example and customs in the bank lending and borrowing relationship, or there was an individual agreement that restricts secured obligations, the existence and content of declaration of intent shall be recognized according to the language and text (see, e.g., Supreme Court Decision 2001Da12430, Apr. 11, 2003).

In light of the above legal principles, the above facts of recognition, and the purport of the whole oral argument as to the aforementioned evidence

종합하여 알 수 있는 다음과 같은 사정, 즉 ① 이 사건 제1, 2근저당권설정계약서 제1조 제1호는 부동문자로 위 각 근저당권의 피담보채무의 범위에 관하여 "채권자는 피담보채무의 범위를 달리하는 특정근담보, 한정근담보, 포괄근담보 세 유형 가운데 어느하나를 설정자가 선택할 수 있음을 설명하였다"고 기재되어 있고, 그 하단에는 특정근담보, 한정근담보, 포괄근담보의 각 피담보채무의 범위에 관한 기재가 있는데, 포괄근담보에 관하여 "채무자가 채권자(본・지점)에 대하여 현재 및 장래에 부담하는 ㉮ 어음대출, 증서대출, 당좌대출, 어음할인, 지급보증, 매출채권거래, 상호부금거래, 사채인수,유가증권대여, 외국환거래 기타 여신거래로 말미암은 모든 채무, ㉯ 신용카드거래로 말미암은 채무, ㉰ 채권자와 제3자와의 위 ㉮의 거래에 대한 보증채무, ㉱ 채권자가 제3자와의 위 ㉮의 거래로 말미암아 취득한 어음 또는 수표상의 채무"라고 기재되어 있으며, 위 각 계약서 말미의 '담보제공자(근저당권설정자)가 꼭 알아두어야 할 사항'란에는특정근담보, 한정근담보, 포괄근담보의 내용에 관한 설명 및 포괄근담보에 관하여는'채무자가 채권자에게 부담하는 현재 및 장래의 모든 채무(여신거래로 인한 채무뿐만아니라 기타 다른 형태의 채무를 포함)를 담보하여 그 책임범위가 아주 광범위하므로포괄근담보를 선택할 경우 다시 한 번 신중히 생각한 후에 결정하십시오'라고 기재가되어 있는 등 포괄근담보의 의미와 포괄근담보에 따른 구체적인 피담보채무의 범위가명시되어 있고, 설정자가 직접 공란에 자필로 기재하여 담보유형 중 하나를 선택하도록 되어 있는 점, ② 이JJ는 이 사건 제1, 2근저당권설정계약을 체결하면서 피담보채무의 범위에 관한 부분 중 포괄근담보에서 정한 채무를 담보하기로 하면서 해당 공란부분에 "포괄"이라고 자필로 기재하였고, 위 각 계약서의 마지막 장에 KK은행의 여신거래기본약관 및 근저당권설정계약서 사본을 수령하였음을 확인한다는 취지로 '수령함', 약관과 약서의 중요한 내용에 대하여 설명을 들었음을 확인한다는 취지로 '들었음'이라고 각 자필로 기재한 다음 서명 및 날인을 하였던 점, ③ 이 사건 제1근저당권설정등기는 2008. 7. 18. 마쳐졌고 그로부터 약 1달 만에 2008. 8. 14. 이 사건 제2근저당권설정등기가 마쳐진 점, ④ 이 사건 제1근저당권설정계약 당시인 2008. 7. 18. 위제1근저당권의 담보물은 별지 목록 제1 내지 5항 기재 각 부동산이고, 이 사건 제2근저당권설정등기 당시인 2008. 8. 14. 위 제2근저당권의 담보물은 별지 목록 제1 내지5항 기재 각 부동산과 BB시 PP읍 QQQ리 28-8 공장용지 2,331㎡ 및 그 지상 공장이었고, 2009. 1. 13. 별지 목록 제6 내지 11항 기재 각 부동산을 이 사건 제1, 2근저당권 모두의 담보물로 추가하는 등 이 사건 제1근저당권의 담보물이 모두 이 사건제2근저당권의 담보물인 점, ⑤ NNN제삼차유동화전문 유한회사의 이 사건 경매신청서에 기재된 일본국법화 대출원금과 이자의 합계가 이 사건 제2근저당권의 채권최고액뿐만 아니라 이 사건 제1, 2근저당권의 채권최고액 합계를 초과하고 있는 점, ⑥ 이JJ는 일본국법화를 대출받으면서 그 채권최고액도 일본국법화로 하기 위하여 KK은행과 이 사건 제1근저당권의 채권최고액을 변경하는 계약을 체결하지 아니하고 이 사건제2근저당권설정계약을 체결하였다고 보이는 점 등에 비추어 보면, 위 피고들이 제출한 증거만으로 KK은행이 이JJ 등과 이 사건 제1, 2근저당권설정계약을 체결하면서그 피담보채무의 범위를 포괄근담보에 따라 정한 것이 은행대차관계에 있어서 이례에속하고 관례를 벗어나는 것이라거나 KK은행과 이JJ 등 사이에 이 사건 제1, 2근저당권설정계약서의 문언과는 달리 각 그 피담보채무를 제한하는 개별 약정이 있었다는점을 인정하기에 부족하고 달리 이를 인정할 만한 증거가 없다.

2) Furthermore, the secured debt of the right to collateral security due to the application for auction by the mortgagee

In a final and conclusive determination, the principal claim arising from a new transaction relationship after the determination is not secured by the right to collateral security, but the interest or the claim for delay incurred after the determination of the original claim that occurred before the determination is still secured by the right to collateral security within the scope of the maximum debt amount (see, e.g., Supreme Court Decision 2005Da38300, Apr. 26, 2007). Accordingly, even if the secured claim of the first and second collateral of the instant case was confirmed with the application for auction filed on December 14, 2010 by the KK Bank, as alleged by the said Defendants, even if the secured claim of the first and second collateral of the instant case was determined by the request for auction filed on Dec. 14, 2010, the interest or the claim for delay incurred after the determination of the original claim of the instant case arising before

3) The first and second collateral mortgages of this case are comprehensive collateral mortgages, and thus, claims for loans of this case Nos. 1, 2, and 3

In full view of the aforementioned evidence, the sum total of KRW 1,647,316,80 [the sum total of KRW 702,00,000 + KRW 945,316,880 (the plaintiff did not dispute over the maximum debt amount of the second priority mortgage of this case converted into Korean won at the executing court of the auction of this case) exceeds KRW 475,476,976,9764, 7664, 67, 67, 197, 196, 197, 197, 364, 47, 197, 196, 47, 196, 47, 196, 47, 196, 47, 196, 367, 47, 196, 47, 197, 196, 367, 196, 47, 196, 367,27, 467,2, etc. of the remaining dividends of this case.

4) Accordingly, as to the instant auction case, the DD District Court drafted on March 26, 2015.

Of the party table, the amount of 436,014,244 won against the plaintiff 74,085,194 won; the amount of 247,060 won against the defendant 2; the amount of 31,989,506 won against the defendant 2; the amount of 953,560 won against the defendant 3; the amount of 24,432,920 won against the defendant 3; the amount of 4,596,957 won against the defendant 2; the amount of 12,954,701 won against the defendant 26,020,118 won against the defendant 26,854,762 won against the defendant 2,854,762 won against the defendant 2,91,535,530 won against the defendant HaH Industries Industries; and the amount of 12,95,530 won against the defendant HaH Industries Industries Co., Ltd.

Amounting to KRW 142,404,071, and amounting to Defendant HHH Industries Co., Ltd. 52,097,942 shall be corrected to KRW 0,00 each.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is justified, and it is ordered to accept it.

shall be determined as above.