1. The plaintiff's appeal is dismissed.

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

Purport of claim and appeal

The first instance court.

1. The reasoning of the court's explanation concerning this case is as stated in the reasoning of the judgment of the court of first instance, except for adding the following determination as stated in paragraph (2). Thus, it is acceptable to accept this as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. The Plaintiff asserts that, while submitting an application for auction, the Gyeongnam Bank did not include the amount of the secured debt in the amount of the secured debt, and the Defendant, who received a claim against Gyeongnam Bank and the instant collateral security from Gyeongnam Bank, did not include the amount of the secured debt in the amount of the secured debt when submitting a claim statement. Therefore, the Defendant cannot be paid the security service cost preferentially, and that this part of the dividend is unlawful.

In an auction procedure to enforce a right to collateral security, even if an applicant obligee stated a specific secured claim in the application for auction and indicated it as a claim claim, if other claims exist as the secured claim of the right to collateral security, the applicant obligee may alter the claim by adding it to the claim, exchanging the original claim with other claims, etc. within the scope of the amount of the claim claim amount originally stated.

(see, e.g., Supreme Court Decision 96Da39479, Jul. 10, 1998). Although Article 192 of the Civil Execution Rule provides that “the indication of a security interest and secured claim” shall be stated in an application for auction for the enforcement of a security right, Article 264 of the Civil Execution Act only provides that “documents proving the existence of a security interest” shall be submitted at the time of such application for auction, and does not require proof of the existence of a secured claim, and the existence of a secured claim should be proved by an obligee in the procedure, such as an objection to the decision on commencement of auction raised by an obligor or owner or a lawsuit for confirmation of the existence of a secured claim.

(see Supreme Court Order 2000Ma5110, Oct. 25, 2000). In a lawsuit of demurrer against distribution, the Defendant is the Plaintiff.