[1] Whether Article 368 of the Civil Act concerning joint mortgage should be applied by analogy in a case where a preferential right to tax payment for a number of real estate owned by a taxpayer is exercised (affirmative)

[2] Where several real estate which is the object of a joint mortgage is put up for auction at the same time, the time when the right of subrogation of the next mortgagee occurred (=the time when the date of distribution expires)

[1] Article 368 of the Civil Act / [2] Article 368 of the Civil Act

［1］［2］ 대법원 2006.5.26. 선고 2003다18401 판결 (공2006하, 1126) ［1］ 대법원 2001. 11. 27. 선고 99다22311 판결 (공2002상, 136)

Korea Housing and Commercial Bank Co., Ltd. (Attorney Park Hong-soo, Counsel for the plaintiff-appellant)

Korea

Korea Mutual Savings Bank, Inc.

Busan High Court Decision 2002Na11571 delivered on February 14, 2003

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

We examine the grounds of appeal.

1. According to the reasoning of the lower judgment, the lower court acknowledged the following facts by comprehensively taking account of each of the evidence in its judgment.

A. (1) The Korea Housing and Commercial Bank (hereinafter “Plaintiff”) Co., Ltd. (hereinafter “Korea Housing and Commercial Bank”) concluded a credit agreement, such as a bill transaction agreement, on several occasions between Yancheon Construction Co., Ltd. (hereinafter “Tancheon Construction”) and Yancheon Construction Co., Ltd. (hereinafter “Tancheon Construction”), and concluded a loan on several occasions from October 21, 1994 to June 29, 199, and completed the registration of creation of mortgage over each of the real estate listed in attached Table No. 1 (hereinafter “real estate No. 1”) as a collateral at the time of the original adjudication on the Kancheon Construction Co., Ltd.’s ownership until June 20, 197, with respect to the real estate listed in attached Table No. 1 (hereinafter “No. 1 real estate”), and completed the registration of establishment of mortgage over Ycheon Construction Co., Ltd. (hereinafter “No. 1 real estate”) and completed the registration of establishment of mortgage on December 3, 1998.

(2) The defendant completed the attachment registration of the instant real estate on July 15, 1999 on the ground of the delinquency in payment of national taxes by Daicheon Construction.

B. (1) On April 21, 200, the Plaintiff filed an application for a voluntary auction of the instant real estate with the Busan District Court Decision 2000 Do19150 on April 21, 2000, and the above court rendered a decision to commence voluntary auction of the instant real estate on May 9, 200, and thereafter, the instant real estate was awarded a successful bid of KRW 1,04,310,00 on March 29, 200, and the appraised price of the instant real estate, an aggregate of KRW 78,00,00 and KRW 2.66,000,000,00,000 for the instant real estate, which is an aggregate building, at the above auction procedure.

(2) On the other hand, on May 14, 2001, the Plaintiff submitted a claim statement of KRW 2,188,927,684 with respect to the principal and interest of loans secured by each right to collateral security at the above court. On the same day, the Defendant also filed a claim for delivery of KRW 1,634,384,940 for total amount of 11 delinquent local taxes including three occasional corporate tax of December 12, 1998, each of which was 1998, including the said amount of 11 delinquent local taxes. The above 1999 occasional corporate tax of KRW 3 of 198.

(3) On May 31, 2001, the date of distribution, the amount to be actually distributed was determined as KRW 1,028,435,307, and 308,530,592, which is equivalent to the ratio of the part of the land, among which the said court set up a distribution schedule with the purport that KRW 98,569,940, among the remaining KRW 719,904,715, the co-defendant of the first instance trial, who is the seizure authority, would distribute the amount to the Defendant, who is the right of seizure and delivery, respectively.

C. Meanwhile, the defendant filed a claim for delivery of the amount of delinquent tax on August 29, 200 at Busan District Court's Busan District Court's 99Hu4750 concerning other real estate owned by tin Construction (hereinafter "pre-paid dividend case"), the amount of delinquent tax on August 29, 200 at KRW 834,229,630 (including three of the aforementioned 1998 occasional corporate tax for 1998), and the above court's decision of 25,444,190 out of the amount of actual dividends on November 1, 200, 717,415,69 won, which was the date of distribution, 625,44,190 won (the above 300 local tax amount for occasional dividends in 198) with the defendant, who was a junior-mortgage, to whom the above 250 local tax court's 200 local tax court's 2500 local tax court's 2050 local tax court's 20500 local tax court's 2020.

2. Judgment of party members

A. The so-called right to preferential payment has the nature of the so-called legal right to preferential payment on the whole property of a tax obligor within a certain scope. Therefore, Article 368 of the Civil Code on Joint Mortgages should be applied in cases where a number of real estate owned by a tax obligor is similar to a joint mortgagee in cases where a number of real estate owned by a tax obligor is involved (see Supreme Court Decision 9Da22311, Nov. 27, 2001).

Meanwhile, Article 368 of the Civil Act provides that where several real estate which is the object of a joint mortgage have been sold at the same time, a joint mortgagee shall only satisfy preferential right to payment regardless of the amount of the auction proceeds of any of the real estate, but the owners of each real estate, the mortgagee, and other creditors have a significant interest in the auction proceeds of which are distributed to the joint mortgagee. As such, Article 368 (1) of the same Act provides that in the case of so-called simultaneous dividends (Simultaneous dividends) where several real estate proceeds are distributed in the same distribution procedure, to the extent that they do not infringe the right to exercise the right to exercise the joint mortgagee and the right to preferential payment, the owner of each real estate and the next mortgagee or other creditors are divided to divide the liability of each real estate to the extent that they do not infringe the right to exercise the right to exercise the joint mortgagee, and the subrogation system under Article 368 (2) of the same Act provides that in the case of so-called so-called timely dividends, the right of the mortgagee is not determined at the time of the distribution schedule.

B. In full view of the purport of the right of preferential tax payment and the legislative intent of Article 368 of the Civil Act, with respect to the instant dividends implemented on May 31, 2001, which was after the date of distribution of the prior dividends case, only the remainder except the amount paid in the prior dividends case should be distributed to the Defendant. If the Defendant received the full payment in the prior dividends case, the lower mortgagee in the prior dividends case should be distributed within the scope of subrogation.

However, the amount of taxes distributed to the defendant in the instant case and the prior distribution case is the same tax related to three of the occasional corporate tax in 1998. However, in this case, since the result of the distribution of the prior distribution case was not considered to have been fully distributed by the defendant, the additional dues and increased additional dues, etc. from the date of distribution to the date of distribution of the instant case are deemed to have been increased. Thus, in this case, the defendant's request for delivery in this case was effective for the subrogation of the defendant's assistant debtor, who is the subordinate mortgagee of the prior distribution case, even if it is justified, the defendant cannot receive all of the dividends in this case.

Nevertheless, the judgment of the court below which held that even if the distribution schedule was prepared to receive the distribution again in this case after the prior dividend case, it cannot be deemed unlawful. The judgment below erred by misapprehending the legal principles as to the preferential tax payment right and the joint mortgage under Article 368 of the Civil Act, which affected the conclusion of the judgment. The grounds for appeal pointing this out are with merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Kang-soo (Presiding Justice)