[Judgment of the court below]

Busan Savings Bank and three others (Attorney Park Jong-sung, Counsel for the plaintiff-appellant)

November 8, 2017

Suwon District Court Decision 2016Gahap104185 decided April 6, 2017

1. The judgment of the court of first instance is modified as follows.

A. From among the distribution schedule prepared on October 26, 2016 by the court in Suwon District Court, the dividend amount of the Defendant Busan District Court 313,415,479 won for the Defendant Busan District Court 167,583,949,353 won for Defendant 2, 135,30,701 won, 17,267, 1297, 1297, 1477, and 14928, the dividend amount of the Defendant Busan District Court 313,415,479 won for the Defendant Busan District Court 167,583,949, and the dividend amount of the Defendant 253,039,353 won for the Defendant 2 135,30,701 won for the Defendant CM loan 17,268,493 won for the Defendant CM loan 501 won, the dividend amount of the Defendant 4 was corrected to 167,3085,8405,385.

B. The plaintiff's remaining claims against the defendants are dismissed.

2. Of the total litigation costs, 50% is borne by the Plaintiff, and the remainder is borne by the Defendants, respectively.

The judgment of the court of first instance shall be revoked. In the distribution schedule prepared on October 26, 2016 by the court of first instance, the amount of dividends against the Defendants shall be deleted, and the amount of dividends shall be corrected to be distributed to the Plaintiff KRW 748,723,325 among the distribution schedule prepared by the court of first instance on October 26, 2016, which was executed by the court of first instance in the Suwon District Court Ansan-si 3898, 4266 (Joint), 777 (Joint), 10124 (Joint), 1297 (Joint), 1477), 129

1. Facts of recognition;

The reasoning for this part of this Court is as stated in Paragraph 1 of Article 420 of the Civil Procedure Act, except for the modification as follows. Thus, this part of this Court is cited by the main sentence of Article 420 of the Civil Procedure Act.

○ The second 18 pages of the judgment of the first instance court (hereinafter “Defendant Busan Savings Bank”) is called “(former trade name: subsidiary mutual savings bank: hereinafter “Defendant Busan Savings Bank”)”.

○ 6th two cases of the first instance judgment are referring to “this Court” as “Sawon District Court of the Republic of Korea Branch of the Military Court.”

○ The following is added between 6th six parallels in the first instance judgment and 7th parallels:

On October 26, 2016, the Plaintiff raised an objection to the dividend amount against the Defendants on the date of distribution of the instant auction procedure, and filed the instant lawsuit on October 31, 2016.

○ 6-7-8 of the first instance court’s 7-8 pages “each description of evidence Nos. 1 through 13, and evidence Nos. 1 through 21, and 28 (including each number)” are as follows: “Nos. 1 through 13, Nos. 1 to 23, and 28-30 (including each number; hereinafter the same shall apply)”.

In all of the judgment of the court of first instance, "attached Form" shall be dismissed in attached Form 1 of the judgment of first instance.

2. Determination as to the assertion against Defendant 2, Co., Ltd., Ltd., and Defendant 4

A. The plaintiff's assertion

① The transfer of the right to collateral security and the right to collateral security between the Defendants does not have any effect on the transfer of the right to collateral security and the transfer of the right to collateral security between the Defendants. ② In the case of real estate indicated in the attached real estate indicated in the judgment of the court of first instance, the transfer of the right to collateral security under the instant claim transfer contract was not made, and as the ground for registration was the transfer of the confirmed claim on April 11, 2016, the instant contract for the transfer of the right to collateral security does not involve the transfer of the right to collateral security, and thus, the transfer of the right to claim transfer and the right to collateral security does not have any effect of change in the real right. Therefore, the instant dividend table, which was prepared to pay each dividend amount to Defendant 2, Co., Ltd., Ltd., and Defendant 4 on the premise of the transfer of the right to collateral security

B. Determination

This Court's reasoning is identical to the corresponding part of the reasoning of the judgment of the first instance except for amendments as follows. Thus, this Court cites it as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

The 9th 5th 1st 5th eth eth eth eth eth eth eth eth eth eth eth eth eth eth

○○ 9th 9th 9th eth son of the first instance judgment, “Next from 1 to 2th eth eth eth eth eth eth eth eth eth

The 13th day of the judgment of the first instance court stated the “registration of the instant collateral security” as the “registration of the instant collateral security”.

○○ 11-5-6 of the first instance judgment’s 11-6 conduct “the Plaintiff’s assertion is without merit, without any need to further examine.”

3. Judgment as to the defendants' assertion (as to the defendant vice bank's vice bank's appropriation of debt)

A. The plaintiff's assertion

(1) On March 17, 2014, Defendant Busan District Court: (a) received money as a person holding a provisional seizure in the auction case No. 20032 in the Suwon-si Branch of the Suwon-dong District Court (No. 1 omitted); (b) received a payment order on June 18, 2014 from the Suwon-si District Court (No. 2014Da2059) and paid the money out of the land expropriation compensation for the land land in Gyeyang-gu (No. 2 omitted); (c) received the payment order on the land purchase compensation of the Hanyang-gu (No. 14, 16, and 18 of the real estate indicated in the attached judgment of the first instance on November 17, 2014, among the real estate indicated in the attached judgment of the court of first instance (No. 14, 2014, “each real estate” should be indicated as “the real estate in question”; and (d) the sale price of each real estate shall be indicated as KRW 2015135,0150,1515.

(2) In the event that such an adequate appropriation was made, all of the collateral security claims shall be extinguished. However, the Defendant Down Savings Bank arbitrarily appropriated all or part of the said sum between the said sum and the No.445, 2 and 3, and asserted that the claim No. 1 of the instant auction procedure remains due to the remainder of the claim No. 1 of the collateral security claims, and the instant distribution schedule was prepared to the Defendants.

(3) Since the instant dividend table that infringes on the Plaintiff’s right to collateral security is unlawful due to the erroneous appropriation of the Defendant Forest Savings Bank’s error, it should be corrected to delete all dividend payments to the Defendants and distribute all deleted amounts to the Plaintiff.

B. Determination as to ① and ② argument

On March 17, 2014, the Defendant Busan District Court: (a) received the payment order for the auction case No. 20032 from the Suwon District Court (No. 1 omitted); (b) on June 18, 2014, on the land expropriation compensation for the land in Gyeyang-gu (No. 2014 tea 2059), the Defendant Busan District Court received the payment order from the Suwon District Court (No. 1 omitted); and (c) on the land expropriation compensation for the land in Gyeyang-gu (No. 2 omitted), the Defendant Busan District Court received the payment order from the Plaintiff as the collateral holder of each real estate; and (d) on the ground that the Defendant Busan District Bank received the payment of the secured debt from the Plaintiff as the collateral holder of each real estate; (e) there is no obligation to first appropriate the secured debt (No. 1) with preferential payment right against the Plaintiff. Therefore, the Plaintiff’s assertion on this part is without merit.

(3) Judgment on the assertion (as to the subject matter of joint mortgage)

(1) Legal relationship concerning each real estate of this case

Of the facts acknowledged earlier, if the relationship of rights on each of the instant real estate is simplified centered on the Defendant Forest Savings Bank and the Plaintiff, the following table is as follows (i.e., the Defendant Forest Savings Bank has priority over the Plaintiff only with respect to the real estate No. 1 through No. 9 owned by Nonparty 1 (Seoul):

본문내 포함된 표 부동산 표시 1~9번 부동산 10~13번 부동산 14~18번 부동산 19~22번 부동산 ＼ 권리관계 소유자 소외 1(주1) 소외 2 우양주택건설 우양주택건설 1순위 1번 근저당권 1번 근저당권 1번 근저당권 1번 근저당권 채권최고액 39억 원 2순위 원고 근저당권 2번 근저당권 2번 근저당권 채권최고액 9억 1천만 원 채권최고액 6억 5천만 원 3순위 3번 근저당권 채권최고액 5억 2천만 원

1) Nonparty 1

(2) Claim No. 1 of the right to collateral security appropriation

Comprehensively taking account of the following circumstances revealed by the facts acknowledged as above and the evidence revealed earlier, the Defendant Forest Savings Bank had already obtained the satisfaction of more than the maximum debt amount of 3.9 billion won of the right to collateral security (1) through the sale of the object auction or the object withdrawn at the auction procedure (1630) around 2012, Seoul District Court Ansan-do, Seoul District Court (2012, 1630, 201).

○ The object of the previous auction procedure, which was initiated by the application for voluntary auction by the Defendant Forest Savings Bank, was 14-18 real estate.

○ The Defendant Forest Savings Bank withdrawn an auction on real estate No. 15 and 17 among the objects of the previous auction procedure, and the house construction, the owner of each of the above real estate, sold real estate No. 15 and 17, and repaid the proceeds of which KRW 2.1 billion to Defendant Forest Savings Bank [in cases where a joint mortgagee renounces a mortgage on part of the real estate subject to a joint mortgage prior to the repayment of a secured claim, in the auction procedure on the real estate with a junior mortgagee, the lower mortgagee may not receive a distribution preferentially to the extent that he could have been subrogated if he did not waive a mortgage (see Supreme Court Decision 2010Da9132, Oct. 13, 201)].

In the previous auction procedure that continued with respect to real estate in ○○○○ 14, 16, and 18, the Defendant Forest Savings Bank received KRW 2,349,438,592, and paid KRW 2,354,487,417, plus the amount of partial auction expenses, paid KRW 2,354,487,417.

○○ Ultimately, it is clear that the calculation of the maximum debt amount already exceeded the maximum debt amount, given that the Defendant Blim Savings Bank received a reimbursement of KRW 4,454,487,417, which was part of the object of the right to collateral security (i.e., KRW 2,354,487,417 + KRW 2,100,000).

(3) Whether Defendant Forest Savings Bank has preferential right to payment to the Plaintiff

As seen earlier, Defendant Down Savings Bank had already been reimbursed the amount exceeding the maximum debt amount regarding the secured mortgage No. 1. As such, the Plaintiff and Defendant Down Savings Bank cannot exercise the right to preferential reimbursement based on the secured mortgage No. 1 against the Plaintiff (see, e.g., Supreme Court Decisions 95Da36596, Mar. 8, 1996; 2013Da20796, Jan. 23, 2014; 2013Da20796, etc.). However, even if Defendants asserted to the purport that they exercise the right to subrogation in the auction procedure of this case based on the subordinated collateral security against the transferred objects of the secured mortgage, some of the real estate on which the joint mortgage is established is owned by the debtor, and some of the real estate owned by the mortgagee is not entitled to exercise the right to subrogation under the latter part of Article 368(2) of the Civil Act against the real estate owned by the debtor (see, e.g., Supreme Court Decisions 2013Da20796).

(4) The amount that the plaintiff could receive a dividend in the auction procedure of this case

The owners of real estate Nos. 1 through 9 are Nonparty 2, the owners of the real estate Nos. 1 and 10-13 are Nonparty 2, the fact that the Plaintiff’s right to collateral security was established on the real estate Nos. 1 through 9, and the fact that the Plaintiff’s right to collateral security was established on the real estate Nos. 36-45, and the fact that the auction price of the real estate Nos. 1 through 9 is KRW 1,352,00,000, the auction price of the real estate Nos. 10-13 is KRW 695,140,000, the auction price of the real estate No. 140,000, the amount paid to the Plaintiff and the Defendants’ senior creditors for the real estate Nos. 986,404,630, and the amount paid to the Plaintiff’s senior creditors for the real estate No. 10-93,293,294,105, and the following facts are acknowledged.

The real estate owner Nonparty 1, Nonparty 2 (a) 1,352,00,00 won 695,140,000 won interest (b) 122,654 won 4,110,201 won 17,38,715 won (c) 5,612,080 won 5,612,080 won (d) dividends of creditors 986,404,630 won 293,294,105 won (a+b-d) 348,379,309 won 40,344,016 won 17,379,309 won dividends of Plaintiff 348,309,000 won, which is 17,612,080 won

(5) the amount of dividends to be changed.

Based on the payment agreement submitted pursuant to the agreement among the Defendants in the auction procedure of this case, the amount of KRW 313,415,479 to the Defendant Busan Savings Bank, KRW 253,039,353 to Defendant 2, KRW 17,268,49, and KRW 165,000 to Defendant 4, and KRW 165,000 to Defendant 4, based on the payment agreement submitted pursuant to the agreement among the Defendants, was distributed in the auction procedure of this case. The fact that the distribution plan of this case was made with the content that the Plaintiff excluded from the distribution was established is as seen above. As such, 348,379,309, and KRW 309 should be divided in proportion to the amount distributed to the Defendants among the distribution schedule of this case. The amount calculated proportionally to the Defendants shall be deducted from the amount distributed to each of the Defendants, and the distribution schedule is corrected as follows:

The dividends (a) of Defendant 4’s C&M lending Co., Ltd., Defendant 2, Co., Ltd. (a) 313,415,479 won 253,039,353 won 17,268,493 won 165,00,000 won by Defendant 41.859% 3.73.7961% by 22.3063% by 22.375% (c) (c) 145,831,530 won by 145,831,530 won by 117,738,652 won by 8,034,97,92 won by 76,774,774,135 won by Defendant 4 shall be corrected (d=167,578,939,00 won by 165,539,2385 won by Defendant 205,37505 won

Note 2) Ratio (b)

Note 3) Amount (c)

D. Sub-determination

Therefore, the Plaintiff’s assertion is with merit within the scope of the above recognition. As such, the amount of 313,415,479 won against the Defendant Busan Savings Bank shall be 167,583,949 won, the amount of 253,039,353 won against the Defendant 2 shall be 135,30,701 won, the amount of 17,268,493 won for the Defendant CM deposit loan shall be 9,233,50 won, the amount of 165,00,000 won for the Defendant 4 shall be corrected to 88,225,865 won, and the amount of 0 won for the Plaintiff shall be corrected to 348,379,309,309 won (the amount of dividend payment against the Defendant shall be corrected to be the aggregate of the dividend amount).

4. Conclusion

Therefore, the Plaintiff’s claim against the Defendants shall be accepted within the scope of the above recognition, and the remainder shall be dismissed, respectively, on the ground that it is reasonable. Since the judgment of the first instance is partially unfair in conclusion, the Plaintiff’s appeal is partially accepted, and the judgment of the first instance is modified as above.

Judges Kim Jin-jin (Presiding Judge)

1) The Plaintiff’s debtor, Defendant vice bank’s property to secure another’s property.

Note 2) A/748,723,325 (=the remainder amount of KRW 348,379,309 +40,344,016) x 100%.

Note 3) 348,379,309 x b, or less than won.