Plaintiff (Attorney Yang Soo-soo, Counsel for plaintiff-appellant)

Defendant

July 6, 2011

Suwon District Court Decision 2009Da70346 Decided December 7, 2010

1. The plaintiff's appeal is dismissed.

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

The judgment of the court of first instance shall be revoked. The amount of dividends 15,51,057 won against the defendant in the distribution schedule prepared by the court of second instance on August 26, 2009 with respect to the Suwon District Court's 2008TTY 67889 (hereinafter "the auction of this case") shall be corrected to 2,50,000 won, and the amount of dividends 0 won against the plaintiff to 13,01,057 won shall be corrected to 13,01,057 won.

1. Basic facts

A. The non-party 1 and 2 own each share of 463/1,190 and the non-party 3 own the share of 264/1,190,000 shares in the land located in Hasung-dong (number 1 omitted) and 1,190 square meters (hereinafter “the site before the instant partition”). Among them, with respect to the non-party 1 share, the right to collateral security, the maximum debt amount of which is KRW 7.5 million on January 22, 1992, and the right to collateral security, the maximum debt amount of which is KRW 15 million on December 22, 1992, was completed (hereinafter “each right to collateral security”). The land before the instant partition was the site before the instant partition.

B. Meanwhile, on November 6, 192, the non-party 4 was awarded the non-party 3 shares among the land before the instant partition. On March 3, 1993, the non-party 4 divided the site before the instant partition into the same (number 1 omitted), 250 square meters (number 2 omitted), 926 square meters (number 3 omitted), and 14 square meters. The non-party 4 completed the registration of ownership transfer in his own name, which was based on the partition of co-owned property as to the said (number 1 omitted) and 250 square meters (hereinafter “the instant site”). The non-party 4 newly constructed multi-household housing (total 9 households; hereinafter “the instant aggregate building”). On April 16, 1993, the registration of ownership transfer was completed with respect to the instant site at the same time as the registration of ownership transfer was completed.

C. On April 26, 1993, the Plaintiff purchased No. 201 among the instant condominiums from Nonparty 4 (hereinafter “the instant section for exclusive use”), and completed the registration of ownership transfer on April 26, 1993, the Plaintiff completed the mortgage-mortgage with the maximum debt amount of KRW 13 million in the name of the Korea Housing and Commercial Bank regarding the instant section for exclusive use on the same day.

D. On December 19, 2008, a national bank which has comprehensively succeeded to the claims against the plaintiff from the Korea Housing and Commercial Bank applied for the auction of this case with respect to the section for exclusive use and its site ownership based on the above right to collateral security, and received a decision to commence auction on December 22, 2008. The defendant did not demand a distribution or submit a claim statement in the auction procedure of this case. The above auction court prepared a distribution schedule that was not distributed to the defendant, 77,642 won, excluding the execution cost, from the amount of dividends paid on August 26, 2009, 15,51,057 won, 7,270,509 won, from the amount of dividends paid on August 26, 2009.

[Ground of recognition] Facts without dispute, entry of Gap evidence 2 to 5 and 7, purport of the whole pleadings

2. The plaintiff's assertion

① The Defendant is merely a mortgagee on the instant site and did not have the right to receive dividends from the proceeds of the sale of the instant section for exclusive use. ② Even if not, the Defendant’s effect of each of the instant collective security rights on each of the instant aggregate buildings extends equally to each of the households. As such, the amount that the Defendant is entitled to receive dividends from the proceeds of the sale of the instant section for exclusive use by the Defendant is KRW 2,50,000 ( = 7.5 million + KRW 15 million + KRW 15 million), which is the amount equivalent to 1/9 of the maximum amount of each of the instant mortgages for exclusive use by the Defendant (=2.5 million + KRW 1/9).

3. Determination

A. Whether the defendant has the right to receive dividends from the auction of this case

Since the fact that the registration of the right to a site cannot be disposed of separately from the instant aggregate building on the instant site is completed as seen earlier, the effect of the right to a site registration on the instant section for exclusive use by the Korea Housing and Commercial Bank or the Korea Housing and Commercial Bank National Bank of the Bank of Korea, which concluded with respect to the instant section for exclusive use, extends to the right to a site, which is a right attached to the instant section for exclusive use, and therefore the right to a site of the instant section

On the other hand, where a mortgage has been established as to a part of a real estate's co-ownership shares and the real estate has been divided according to co-ownership shares, the mortgage continues to exist in accordance with the ratio of shares on each divided real estate (see Supreme Court Decision 92Da30603, Jan. 19, 193, etc.) and each divided real estate becomes the joint collateral of the said mortgage. In addition, even in a case where one piece of land on which the mortgage has been established becomes the object of the right to a site for the whole aggregate building, the mortgage shall continue to exist after being divided into each part of the exclusive ownership, and each right to a site shall be the joint collateral of the said mortgage. Accordingly, even after the division was divided on March 3, 193, 250 shares of the Defendant among each of the instant joint ownership shall continue to exist on each of the instant joint ownership after each of the instant joint ownership was newly constructed on the instant land, and each of the instant joint ownership shall continue to exist in accordance with the ratio of shares, and each of the instant joint ownership shall be jointly secured for the dividends.

However, the proviso of Article 365 of the Civil Act provides that a mortgagee of a building site may not obtain a preferential payment from the proceeds from the sale of the newly constructed building by the mortgagee. Moreover, the effect of the establishment registration of a mortgage completed on one of the land or a building before the site ownership arises shall not extend to the other party even if the registration of a site ownership is completed. As such, the defendant has no right to receive a preferential payment of the part of the whole proceeds from the sale. On the other hand, even if the registration of a mortgage established on one of the land or a building before the site ownership arises after the registration of a site ownership is completed, it shall be deemed that the mortgage established on one of the land or a building before the site ownership arises remains effective as a collateral. As such, the defendant has the right to receive a preferential payment for the part of the whole proceeds from the sale of a building. Considering the purport of arguments as to this case, the whole purport of arguments as stated in evidence evidence No. 28, the right to a site ownership is 24 million won or less, the right to receive a preferential payment of less than 75 million won x75 million won.7 million won.

B. Calculation of the amount that the defendant received as dividends

Furthermore, regarding the amount to be distributed to the Defendant. Since the site ownership of the instant exclusive ownership is the joint collateral of each of the instant collective ownership rights, the Defendant is entitled to participate in dividends on the basis of the total amount of the secured claims of each of the instant collective ownership rights. As seen earlier, the Defendant’s dividends against the Defendant are equal to the maximum debt amount on the register (see, e.g., Supreme Court Decision 9Da24911, Sept. 8, 200). However, as seen earlier, the 250/190 shares out of each of the instant collective ownership rights were kept on the instant site, and the ownership of the instant exclusive ownership remains on each of the instant site, on the grounds that the ownership was established on each of the instant collective ownership of 25/197, and the remaining shares were sold on each of the instant collective ownership of 90/197, and on each of the instant collective ownership of 29/1972/197, 206/197 of shares remaining on each of the instant collective ownership.

Ultimately, the plaintiff's assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall be just and it shall be dismissed as it is so decided as per Disposition.

Judges Kim Sung-soo (Presiding Judge)