[1] In a case where several persons paid part of the claim on behalf of others at different times, the method of distributing dividends in the auction procedure due to the exercise of a right to collateral security, and in a case where the creditor separately agreed on the order of performance or appropriation of dividends with a certain subrogation, the method of

[2] In a case where Gap Corporation and Eul subrogated for their respective guarantee-related obligations to the creditor, and in the auction procedure, only the amount less than their remaining claims are stated in the claim appropriation amount as the priority appropriation amount, and only the amount divided distribution for Gap Corporation out of the amount subject to the remainder distribution distribution distribution is absorbed by the creditor, and the auction court requested the distribution of dividends in the way of distributing dividends as they are, and the auction court prepared a distribution schedule to exclude Eul Corporation from Gap Corporation's dividends and filed a lawsuit of demurrer against Eul Corporation, the case reversing the judgment below which concluded that Eul Corporation infringed the right to receive dividends of Gap Corporation, without examining whether there is an agreement between the creditor, Gap Corporation, and Eul on the priority repayment order and appropriation of dividends between the creditor and Eul Corporation and the Fund

[1] In a case where a person having legitimate interest in repayment of a part of the right to collateral security has subrogated for an obligor, the obligee shall naturally acquire the right to claim and collateral held by the obligee within the extent of the amount repaid regardless of whether the right to collateral security has been paid in additional registration before the partial payment has been made. Meanwhile, in a case where several persons have made a partial subrogation of the claims at different times, they shall be deemed to have completed the right to collateral security in proportion to the amount discharged as a partial subrogation. However, in such a case, barring any special circumstance, the obligee shall have the right to preferential reimbursement of a part of the claims, and the right to preferential reimbursement of the obligee shall be equal to the total amount of the remaining claims he/she owns within the maximum amount of the maximum amount of claims. Accordingly, in the event of the exercise of the right to collateral security, the obligee shall have the right to preferential reimbursement prior to the partial subrogation and the remaining amount of the subrogated amount in proportion to the amount of each subrogation. However, if the obligee has agreed separately between the obligee and some other persons who have made a payment in proportion to the remaining amount of the agreement, it shall not be effective within the extent of the remaining amount of distribution.

[2] In a case where Gap Corporation and Eul, a guarantee agency, subrogated their respective guarantee-related obligations to the creditor, and in the auction procedure due to the execution of a right to collateral security, the case reversing the judgment of the court below which concluded that Eul Corporation violated Eul Corporation's right to receive dividends, without examining whether there exists an agreement between the creditor who is a financial institution, Gap Corporation and Eul, and the guarantee agency, on the repayment order or appropriation of dividends, and the content of the agreement, and the grounds why the creditor prepared the claim statement, in a case where Gap Corporation and Eul subrogated to the creditor, and limited to the amount which falls short of their remaining claims in the claim appropriation amount, and the creditor absorbs only the amount of dividends to Gap Corporation out of the remainder of the amount subject to the distribution distribution distribution, and the auction court requested Eul to distribute dividends in the way of distributing dividends as they are as it is, thereby making a claim for objection against Eul Corporation

[1] Articles 105, 357, 481, 482(1), and 483(1) of the Civil Act / [2] Articles 105, 357, 481, 482(1), and 483(1) of the Civil Act

[1] Supreme Court Decision 200Da37319 Decided January 19, 2001 (Gong2001Sang, 511) Supreme Court Decision 2005Da19958 Decided July 28, 2005 (Gong2006Da2762 Decided February 10, 2006) Supreme Court Decision 2007Da15448 Decided February 26, 2009 (Gong2009Da80460 Decided April 8, 201)

The Korea Trade Insurance Corporation (Law Firm Jin Law, Attorneys Sung- Chang et al., Counsel for the defendant-appellant)

Korea Technology Credit Guarantee Fund (Law Firm Doll, Attorneys Gyeong-jin et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na51873 decided December 23, 2010

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. The judgment of the court below

(1) According to the reasoning of the lower judgment and the first instance judgment as cited by the lower court, the lower court acknowledged the following facts by comprehensively taking account of the evidence admitted.

① New Bank Co., Ltd. (hereinafter “New Bank”) was created with respect to the instant land and building (hereinafter “instant real estate”) owned by Esbcom (hereinafter referred to as “SB”), a total of KRW 4,171,800,000,000, total of the maximum debt amount against which the debtor becomes the non-party company, on seven occasions from December 29, 199 to October 9, 2006.

② Around January 22, 2007, the Plaintiff concluded an export credit guarantee agreement with the non-party company and guaranteed the obligations related to the export transaction of the non-party company to the non-party company, and on August 7, 2007, upon the occurrence of the non-party company’s guarantee accident (which appears to be erroneous in the judgment of the court of first instance cited by the original court on August 14, 2007), the real estate of this case was provisionally seized (the claimed amount of KRW 480,00,000), and on November 21, 2007, subrogated the new bank for KRW 490,868,986 of the principal and interest on the debt related to the above guarantee.

③ On October 24, 200 and October 10, 2002, and November 20, 2006, the Defendant concluded a credit guarantee agreement, respectively, with the non-party company, and guaranteed the debt owed to the non-party company to the new bank. On August 20, 2007, the real estate of this case was provisionally seized (the claimed amount of KRW 700,425,000) on August 20, 2007, and on November 15, 2007, the new bank paid the principal and interest of the debt related to each of the above guarantees amount of KRW 717,709,197 on behalf of the non-party company, and completed the additional registration with respect to the collateral security amount of KRW 507,00,000 on November 19, 202 with the maximum debt amount of KRW 340,80,000,000, the additional registration of the maximum debt amount of KRW 3005,009.36.

④ On October 17, 2007, Incheon District Court Decision 2007Hu61023 on October 17, 2007, the auction procedure commenced on the instant real estate; on June 18, 2009, the new bank prior to the date of distribution was 3,819,875,976 won; on June 10, 2009, the remaining amount of the credit until the date of distribution of the new bank was 3,819,875,976 won. The new bank was 4,171,80,80,00 won calculated by deducting 136,632,897 won from the total maximum debt amount of each of the new banks’ 4,036,6367,67,167,10367, 1067, 2067, 207, 2047, 2067, 2005 won, 2067, 3675, 2067, 16767, 167

⑤ On June 18, 2009, the court issued a distribution schedule to distribute to the new bank 3,818,805,167 won in the order of 3,818,167 won in the order of 4, and to exclude the Plaintiff from the distribution in the order of 216,361,936 won in the order of 4, as stated in the statement of claim distribution. The Plaintiff raised an objection against the amount of 500,000,000 won out of the amount of dividends of the bank that was newly distributed on the date of distribution, and filed a lawsuit of demurrer against the Defendant on June 24, 2009.

(2) Based on the above facts acknowledged, the court below determined that since the new bank has preferential rights to payment of all remaining claims of the new bank against the plaintiff and the defendant who is merely the substitute, any of the dividends can be absorptioned, and since the new bank received preferential dividends in proportion to their respective claims and then the plaintiff and the defendant received dividends in proportion to their respective claims, the court below should correct the dividend amount of the plaintiff to KRW 87,963,718, and KRW 216,361,936,938,218 in proportion to the amount of claims until the date of distribution and the defendant's distribution to the plaintiff and the defendant.

2. Judgment of the Supreme Court

However, we cannot accept the above determination by the court below for the following reasons.

(1) In a case where a person having a legitimate interest in repayment of a part of the secured obligation on behalf of the debtor has subrogated for the debtor, the subrogated person shall obtain as a matter of course the right to claim and collateral held by the creditor within the scope of the value of performance, regardless of whether a supplementary registration prior to the partial payment of the right to collateral has been made. Meanwhile, if several persons have made a partial payment of a claim at different times, they shall be deemed to have completed the right to collateral in proportion to the value of performance performed by each of the partial subrogation. However, in such a case, barring any special circumstance, the obligee shall have the right to preferential reimbursement for a part of the claim, and the right to preferential reimbursement is limited to the remaining amount of the claim owned by the obligee within the scope of the maximum debt amount. Accordingly, when the right to preferential reimbursement is exercised, the obligee shall have the remainder of the claim prior to the partial subrogation, and the obligee shall have the remainder apportioned in proportion to the amount of subrogation (see, e.g., Supreme Court Decisions 200Da3719, Jan. 19, 2001).

However, in cases where a separate agreement is made between a creditor and a certain part of subrogation on the order of performance or appropriation of dividends, the method of distributing dividends is determined in accordance with the agreement (see, e.g., Supreme Court Decisions 2005Da19958, Jul. 28, 2005; 2007Da15448, Feb. 26, 2009; 2009Da80460, Apr. 8, 2010). In such cases, the agreement is effective only to the parties to the agreement, barring special circumstances such as the same agreement between a creditor and a part of subrogation, and thus, the right of partial subrogation, other than a party to the agreement, to receive dividends in proportion to the amount of dividends, cannot be infringed.

Therefore, if there is an agreement between a creditor and a partial subrogation as to the order of performance or appropriation of dividends between a creditor and a partial subrogation, the court of auction shall allocate the remaining amount of a claim to the creditor within the scope of the maximum amount of the right to collateral security of the creditor, in principle, according to the method of distribution, if such agreement is reached, the court of auction shall first allocate the remaining amount of claim to the creditor within the scope of the maximum amount of the right to collateral security of the creditor, and determine the amount to be apportioned by dividing the remaining amount to some subrogation in proportion to the amount of subrogated by the creditor and a partial subrogation who are the party to the agreement, by reflecting

(2) However, according to the reasoning of the lower judgment and the record, while the new bank is deemed to have set up a distribution schedule by dividing the remaining amount of claims of the new bank in the account statement of claims submitted to the auction court on June 10, 2009, into the 3,819,875,976 won for preferential appropriation and distribution between the new bank and the Defendant on the ground that preferential distribution is necessary, the new bank and the Defendant are divided into the amount to be distributed (3,624,145,187 won) and the amount to be distributed in proportion to the claims of the new bank on the ground that distribution is necessary, and then only the new bank and the Defendant were divided into the amount to be distributed in proportion to the amount to be distributed in proportion to the Plaintiff out of the amount to be distributed in proportion to the distribution amount. The auction court, in accordance with the above account statement of claims, divided the amount to be distributed from the collateral security of the new bank and the Defendant, who is a part of subrogation, and excluded the Plaintiff from the distribution amount.

In light of the fact that the Plaintiff and the Defendant request the Defendant to pay dividends only to the Defendant even though they are equally in the same status as the partial subrogation, barring any special circumstances, even though a new bank may receive dividends of its remaining amount of claims in preference to some subrogation, the lower court should have further examined whether there exists an agreement between the new bank and the Defendant, which is a financial institution, on the priority order of repayment or appropriation of dividends, and on the content of the agreement, and on the basis that the new bank and the original and the Defendant, which is a guarantee agency, are able to absorb the amount of dividends to the Plaintiff, and should have determined whether the Plaintiff’s right to receive dividends has been infringed upon by the Defendant.

Nevertheless, without examining the above points, the court below concluded that the defendant infringed the plaintiff's right to receive dividends, and concluded that the defendant infringed the plaintiff's right to receive dividends. The court below erred by misapprehending the legal principles on dividends between the creditor and some subrogation, which led to the failure to exhaust all necessary deliberations, which affected the conclusion of the judgment.

3. Conclusion

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

Justices Lee In-bok (Presiding Justice)