[1] Whether the applicant creditor may extend the amount claimed during the voluntary auction procedure (negative)

[2] Whether an applicant creditor may add other claims secured by the relevant right to collateral security to claims or exchange the original claims with other claims (affirmative with qualification) in the auction procedure (affirmative with qualification)

[1] In case where the applicant creditor stated only part of the secured debt in the amount of the claim in the application for auction in the case of an application for auction for the execution of security right, barring any special circumstance, the applicant creditor shall be determined to the extent of the amount of the claim stated in the amount of the secured debt in the auction procedure, and the amount of the claim shall not be extended by the method of submitting the application for expansion of the claim amount or the statement of the claim account, etc., aside from the fact that

[2] In light of the legislative intent of Article 601 subparag. 3 of the Civil Procedure Act and Article 204 subparag. 2 and subparag. 4 of the Rules of Civil Procedure, which apply mutatis mutandis to the auction procedure to exercise a security right pursuant to Article 728 of the Civil Procedure Act, and the legislative intent of Article 601 subparag. 2 and subparag. 4 of the Rules of Civil Procedure, characteristics of the right to collateral security, etc., even if the applicant creditor stated the specific secured claim in the auction procedure to exercise the right to collateral security on a group of claims and indicated it as the claim claim, if other claims exist as the secured claim of the right to collateral security, he/she may change the claim by adding the other claim or exchanging the original claim with the other claim (if the amount of the claim secured after the change exceeds the claim amount stated in the auction application, he/she shall not be paid dividends to the excess amount). In this case,

[1] Articles 601 subparag. 3, 658, and 728 of the Civil Procedure Act; Article 204 of the Rules of Civil Procedure / [2] Articles 601 subparag. 3, 658, and 728 of the Civil Procedure Act; Article 204 of the Rules of Civil Procedure

[1] [2] Supreme Court Decision 96Da457 delivered on January 21, 1997 (Gong1997Sang, 600) / [1] Supreme Court Decision 94Da8952 delivered on February 28, 1995 (Gong1995Sang, 145) Supreme Court Decision 95Da15261 delivered on June 9, 1995 (Gong195Ha, 2383 delivered on February 28, 1997) (Gong197Sang, 886) Supreme Court Decision 96Da495 delivered on February 28, 1997 (Gong197Sang, 97Sang, 902)

Hyundai Petroleum Chemical Co., Ltd. (Attorney Jeong Young-deok et al., Counsel for the defendant-appellant)

Industrial Bank of Korea (Attorney Kim Jong-chul, Counsel for defendant-appellant)

Seoul High Court Decision 95Na32237 delivered on July 26, 1996

The part of the lower judgment against the Defendant is reversed and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

In applying for auction in order to exercise a security right, in case where the applicant creditor entered only part of the secured debt in the claim amount in the application for auction, barring any other special circumstances, the applicant creditor shall be determined to the extent of the claim amount stated therein, and the claim amount shall not be extended by the method of submitting the application for extension of claim amount or the statement of claim amount (see, e.g., Supreme Court Decision 96Da495, Feb. 28, 1997).

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to the extension of the claim amount in the real estate auction procedure, such as a theory of lawsuit. There is no ground for argument.

2. As to the grounds of appeal Nos. 2 and 3

In full view of the evidence at the time, the court below determined that on September 15, 1993, the defendant filed an application for auction of real estate at KRW 766,259,00, including loans as stated in the attached Table 3 of the judgment below among the total loans of KRW 1,760,212,00, which are collateral security holders, as stated in the attached Table 3 of the judgment of the court below, with the claim amount of overdue interests of KRW 766,259,00, including loans as stated in the attached Table 3 of the judgment of the court below as the claim amount, at KRW 93,00 (Case 1 omitted), and that on September 16, 1993, the defendant filed an application for auction of real estate at KRW 90,60,00 with the above claim amount stated in the attached Table 90,000 as stated in the attached Table 3 of the judgment below, which included the above claim amount of 90,000 won and the above claim amount of promissory notes as stated in the above claim amount of KRW 94.64.2

In light of the legislative intent of Article 601 subparag. 3 of the Civil Procedure Act and Article 204 subparag. 2 and subparag. 4 of the Rules of Civil Procedure, which apply mutatis mutandis to the auction procedure to exercise a security right pursuant to Article 728 of the Civil Procedure Act, and the legislative intent of Article 201 subparag. 2 and subparag. 4 of the Rules of Civil Procedure, and the characteristics of the right to collateral security, even if an applicant creditor stated the specific secured claim in the auction application and indicated it as a claim claim, if other claims exist as the secured claim of the pertinent right to collateral security, he/she may change the claim by adding the other claims or exchanging the initial secured claim with such other claims (if the amount of the secured claim after the change exceeds the claim amount stated in the auction application, he/she may not receive a distribution for the excess amount). In such case, the change change change of the claim shall be determined by objectively

In this case, as recognized by the court below, although the dividends that the defendant received in the auction procedure of the Dong branch support was appropriated for the repayment of the above promissory note claim, etc., the defendant, in spite of the fact that the above dividends were appropriated for the repayment of the claim stated in the above attached Table 3, the defendant, in the auction procedure of this case, submitted an application for extension of the claim amount to expand the claim amount equivalent to the claim amount in addition to the claim amount of the above claim amount in addition to the claim amount in the auction procedure of this case, and did not express his/her intention of withdrawal from the claim amount stated in the attached Table 3 of the above attached Table at this time. The claim statement is merely one material in determining whether the auction court has excessive auction or preparing dividends, and if the above claim is withdrawn from the claim amount, the above collateral security becomes extinguished through the auction of this case, and thus the defendant, the applicant creditor, submitted the claim statement with the same contents as the judgment below acknowledged, and thus, cannot be concluded to have withdrawn the claim in the above attached Table 3 of this case.

Nevertheless, the judgment of the court below which held that the defendant withdrawn the above claim is erroneous by misapprehending the legal principle regarding the withdrawal of the claim claim by the creditor applying for auction, or by interpreting the intention thereof, and it is obvious that this affected the conclusion of the judgment, and therefore, it is reasonable to point this out

3. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Sung-sung (Presiding Justice)