After the seizure and assignment order of a subordinate mortgagee of the land regarding the claim for compensation for land expropriation deposited has been issued, the priority order in cases where a senior mortgagee of the land is again seized (priority mortgagee).

In case where a senior mortgagee is again attached after a seizure and assignment order of a junior mortgagee on the land in question has been issued with respect to the right to claim compensation for land expropriation which was deposited, as long as the compensation has been deposited, the compensation still remains specified, and it is deemed that the senior mortgagee has no difficulty in exercising the right to subrogation. Furthermore, since the assignment order of a junior mortgagee is prejudicial to the senior mortgagee, which is invalid in relation to the senior mortgagee, the right to receive the compensation is invalid.

Articles 342 and 370 of the Civil Act, Article 563 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1058 (Gong1987, 1053)

Plaintiff Co., Ltd. (Attorney Park Jong-soo, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney So-young, Counsel for the defendant-appellant)

1. Nonparty 2’s right to receive KRW 156,00,000 out of the amount of compensation for losses of KRW 331,592,00,000 among the amount of compensation for losses of KRW 1,448㎡-dong (number 1 omitted) owned by Defendant 2 and the Korea National Housing Corporation as of November 30, 196.

2. The costs of lawsuit shall be borne by the defendants.

The same shall apply to the order.

1. Basic facts

The following facts shall be deemed to have been led by the above defendant pursuant to Article 139 of the Civil Procedure Act between the plaintiff and the defendant 2, and between the plaintiff and the defendant 1, the above defendant shall be deemed to have been led to the confession of the above defendant pursuant to the above Article 139 of the Civil Procedure Act, and between the plaintiff and the defendant 1, the evidence Nos. 1, 2, 6 through 10, Gap evidence Nos. 3 and 5-1 through 4, Eul evidence Nos. 4-5, 5 and 6, and the testimony of non-party 1

A. On February 18, 1994, Defendant 2 entered into a mortgage agreement with the Plaintiff to secure all the obligations that Nonparty 2 would incur to the Plaintiff in the future within the limit of KRW 156,00,000,000, and completed a mortgage registration No. 1,448 square meters (hereinafter “instant land”) with respect to the land owned by the said Defendant on the same day as the Plaintiff No. 11910 on the same day as the Plaintiff received as to the 1,1910 square meters (hereinafter “the instant land”).

B. On June 20, 1995, the above non-party 2 borrowed 50,000,000 won from the plaintiff on June 20, 1995, and the non-party 2 jointly and severally guaranteed the obligation to pay the principal and interest of the loan. In addition, on September 20, 1996, he borrowed 133,00,000 won (=120,000,000 + 13,00,000 won) from the plaintiff.

C. Meanwhile, on January 12, 1996, the non-party Korea National Housing Corporation decided on October 21 of the same year that the land in this case should be expropriated in KRW 31,592,00 for compensation for losses, on October 21 of the same year and that the land in this case should be expropriated in KRW 31,592,00 for compensation for losses, but the time should be November 30 of the same year.

D. On August 8, 1995, Defendant 1, who had registered the establishment of a mortgage on the land of this case No. 250,000,000 won and the maximum debt amount No. 102717, Dec. 19, 192, as to the establishment of a mortgage on the land of this case, had registered the establishment of a mortgage on the land of this case No. 50,000 won as the maximum debt amount No. 102717, Oct. 31, 1995, Defendant 1, as the above right of subrogation, exercised the right of subrogation for the above right of compensation of this case by Defendant 2 as the above right of 96,3701,3702, which was 264,000,000 won as the claim amount of the above right of compensation of this case, was ordered to seize and order the right of compensation of this case to exercise the right of subrogation on November 17, 191.

E. When the above claim for compensation was seized as above, the Korea National Housing Corporation deposited the deposited amount of KRW 331,592,00 as the Plaintiff or Defendant 1 or Defendant 2 on the ground that the above claim for compensation was unknown on the 30th of the same month.

2. Determination of the parties' arguments

The plaintiff asserts that the plaintiff had the right to receive the compensation amounting to KRW 156,00,000, which corresponds to the plaintiff's claim secured by the collateral security right No. 1 out of the above compensation amount of KRW 133,000 (loan to defendant 2) + KRW 23,000,000 (part of KRW 50,000,000) which corresponds to the plaintiff's claim secured by the collateral security right No. 1) before the seizure of the above claim. Accordingly, the defendants asserted that the defendant had the right to receive the compensation amounting to KRW 264,00,000 among the above claim for compensation amount of KRW 264,00,000, before the seizure of the plaintiff, since the defendant received the order for the seizure and assignment of the claim for compensation amounting to KRW 264,000,000 among the above claim for compensation amount and the order became final and conclusive, the defendant had already transferred the right to claim compensation amount to defendant 1.

On the other hand, Article 69 of the Land Expropriation Act is a requirement to exercise the right of preferential payment before the payment of compensation is made if the object of the security right is expropriated. The reason why the right of preferential payment is required to exercise the right of preferential payment before the compensation is mixed with the general property of the owner. Furthermore, even if the public project owner deposits the compensation in the land expropriation, it cannot be said that there was any payment under the proviso of Article 69 of the Land Expropriation Act until the compensation is paid out and mixed with the general property of the owner of the real estate subject to expropriation (see Supreme Court Order 92Ma380, 381 delivered on July 10, 1992). Thus, once the above Korea National Housing Corporation deposited the compensation as above, even if Defendant 1 was ordered to seize and seize the above claim, the above compensation still maintains a specific nature, and thus, it does not interfere with the plaintiff's exercise the right of preferential payment. Furthermore, since the above order of preferential assignment of Defendant 1's above is prejudicial to the plaintiff's claim 100 billion won.

3. Conclusion

Thus, the plaintiff's claim of this case is reasonable, and there are interests in confirmation, so it shall be accepted, and the costs of lawsuit shall be borne by the defendants who have lost. It is so decided as per Disposition.

Judges Kim Yong-Hun (Presiding Judge)