Where real estate subject to joint mortgage is fully sold, the amount of claims shall be apportioned in proportion to the proceeds of the auction of each real estate.

When real estate subject to joint mortgage is sold in whole and the proceeds of such auction are distributed at the same time, the apportionment of claims shall be determined in proportion to the proceeds of the auction of each real estate, and it shall not be deemed different from the case where a equity right holder sells the real estate in whole through the exercise of a mortgage over all other real estate and distributes

Article 368 of the Civil Code, Joint Mortgage and Dividend of Proceeds, Subrogation of next Order

2013 Gohap2864 Demurrer against distribution

KimA

Korea

October 31, 2013

November 21, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

With respect to the real estate auction case of the Daegu District Court Seoul Western District Court 2012Taeng 12532, the dividend amount OOOOOOO on Kimhae, prepared by the same court on August 1, 2013, shall be corrected to OOOOOO, and the dividend amount OOOOOO for the plaintiff shall be corrected to OOOOO.

1. Facts of recognition;

A. The Plaintiff and B owned 1/2 shares of the real estate listed in the separate sheet (hereinafter “instant real estate”).

B. As of February 14, 2011, with respect to the entire real estate of this case, the first priority collective security, consisting of the debtor BB, the mortgagee-mortgage, the credit union of the Kimhae-hae Chamber of Commerce and Industry (hereinafter referred to as the "EEEM"), the debtor KimCC (amended to 0DD September 22, 201), the debtor EE Union, the maximum debt amount, and the second priority collective security, each of which was established.

C. On November 2, 2012, the Daegu District Court (Seoul Western District Court), Seoul Western District Court 2012tagi12532, the voluntary auction procedure regarding the instant real estate was initiated upon the application for EE new consultation.

D. On the date of distribution of the above auction procedure held on August 1, 2013, the House Administrative Court prepared the distribution schedule as follows: (a) the amount of dividends to be paid to the Plaintiff, who is an applicant creditor (ne-mortgagee) in the order of priority, shall be the first priority to distribute the cost of execution to the GG group after deducting the cost of execution from the cost of execution from the cost of OOOOOO; (b) the applicant creditor (ne-mortgagee); and (c) the applicant creditor (ne-mortgagee); and (d) the applicant creditor (ne-mortgagee); and (d) the applicant creditor (ne-mortgagee), in the order of first and second priority to the Plaintiff, who is the owner of the OOO, 1/2 equity, and 5th priority to the issuance right holder, that distributes the amount of OOOOO and 6th priority to the GG group.

E. The Plaintiff appeared on the date of the foregoing distribution, and thereafter raised an objection against the OOO out of the amount of dividends on the Kim Sea's Certificate, and thereafter filed the instant lawsuit against the Defendant Republic of Korea (the competent authority: Kim Jong-do Office) on August 2, 2013.

[Ground for Recognition: Facts without dispute, Gap 1 through 3, obvious facts in records, the purport of the whole pleadings]

2. Determination on this safety defense

The defendant, who is standing to sue a lawsuit of demurrer against distribution, is present on the date of distribution, and limited to the creditor or debtor who has raised an objection to the distribution, and in order to file an objection to the substantive objection to the distribution schedule as the creditor, it is necessary to lawfully demand a distribution not later than the completion date of the demand for distribution. The plaintiff asserts that the lawsuit of demurrer against distribution of this case is unlawful since the plaintiff did not have made a demand for distribution in the auction procedure of this case, and therefore, it

However, in a lawsuit of demurrer against a distribution, a person who is qualified as a plaintiff in the lawsuit of demurrer against a distribution shall be deemed as a person who is able to gain profits with respect to the dividend by not recognizing the dividend amount pursuant to the distribution schedule as justifiable, i.e., a person who is able to increase the amount of dividends to himself/herself in case where the distribution is deemed to be justifiable. Therefore, in an auction to enforce the security right, the "debtor" under Articles 151(1) and 154(1) of the Civil Administrative Court Act applied mutatis mutandis pursuant to Article 268 of the Civil Act includes the owner of the mortgaged real estate. The owner of the mortgaged real estate shall not be deemed the requisite for the objection against the distribution, as long as the owner of the mortgaged real estate is the party concerned in the auction procedure entitled to receive the distribution of surplus without a demand for distribution. Thus, the Defendant's

3. Determination on the cause of the claim

A. The plaintiff's assertion

(1) Since the claims of GG group are jointly borne by the Plaintiff and the BB, the amount to be distributed if the amount of the claims is deducted by the deduction of the amount of the claims is left by the OOOB. As to the EE new collateral security, the Plaintiff is the debtor, and the Plaintiff is only in the status of the surety, and the OOB should be distributed preferentially from the sales price of the shares owned by the obligor, so the entire amount of the claims should be distributed out of the sales price of the shares owned by the obligor. As for the EE new collateral security, the Plaintiff and the BB are in the status of the surety, and the share ratio owned by both the Plaintiff and the EB are the same as 1/2, so the auction price ratio is equal. Accordingly, from the sales price of the shares held by the Plaintiff and the BB, each OO2 (OO x x 1/2) should be distributed.

In the event that the dividends are distributed in the above manner, the sales price for the remaining shares of this B shall be distributed to the Defendant, a tax claim holder of the said tax claim, not the said tax claim, and the remaining sales price for the shares of this B shall be distributed to the Plaintiff, while the surplus OO members shall be distributed to the Plaintiff, the said distribution schedule is drafted with the content of distributing OOO and the Plaintiff, respectively.

Therefore, it is clear that the above distribution schedule was made illegally. Since the plaintiff raised an objection against the plaintiff only to the OO members out of the dividend amount erroneously distributed to the defendant, the above distribution schedule must be revised as stated in the purport of the claim.

B. Determination

(1) In full view of the above facts, each of the dividends stated in the above distribution schedule is calculated in the same manner as the following:

- Statement of Details of distribution - Court Decision 5

According to the Shedward List, since the first priority mortgage of the GG group and the second priority mortgage of the EE New Consultation are distributed out of the proceeds from the sale of the shares in the BB, and it does not affect the conclusion of the plaintiff's dividends, the issue of this case is whether the distribution of the second priority mortgage of the EE New Consultation is legitimate or not.

However, in the event that the immovable property subject to joint mortgage is sold in whole and is distributed at the same time, the apportionment of the claim shall be determined in proportion to the proceeds of the auction of each immovable property (Article 368(1) of the Civil Act), and "the proceeds of the auction of each immovable property" refers to the balance obtained by deducting the expenses to be borne by the relevant real estate from the proceeds of the auction and the senior claim (see, e.g., Supreme Court Decision 2001Da66291, Sept. 5, 2003), and in the event that a joint mortgage is created on the same immovable property for securing the same claim, each co-ownership is established with the relationship of joint mortgage, barring any special circumstance, and each co-ownership is secured by the total amount of the secured debt (see, e.g., Supreme Court Decision 2005Da44091, Jun. 15, 2006). Thus, the above legal principle does not change in the case of selling the real property at the same time through the exercise of all other real property.

Therefore, it is reasonable to prepare a distribution schedule with the content that sets forth the allocation of the above 2-mortgage claims in proportion to the auction cost for the Plaintiff’s shares (the remainder after deducting the auction cost and senior claims) and the auction cost for the shares of this BB at the office of the administrative court. Therefore, this part of the Plaintiff’s assertion is without merit.

Meanwhile, the Plaintiff asserts that the application of Article 368(1) of the Civil Act should be entirely excluded from the auction of this case based on Supreme Court Decision 2008Da41475 Decided April 15, 2010. However, the above decision is that some real estate is owned by a debtor and some real estate is owned by a person who has pledged his/her property to secure another's property, and it is clear that BB can be applied to dividends for claims of the above first-class collateral security, which is the debtor. However, the Plaintiff and BB are not applicable to dividends of the above second-class collateral security, which corresponds to a person who has pledged his/her property to secure another's property, so the Plaintiff'

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.