Daegu District Court Port Support-2013-Ga-302431 ( October 28, 2014)

A person who makes a subrogation has a right to receive dividends in preference to subordinate right holders.

Since a person who makes a payment by subrogation acquires existing claims and rights concerning security held by creditors in proportion to the amount of payment by subrogation, it is necessary to revise the distribution schedule of the amount distributed to junior creditors.

Article 483 of the Civil Act, Partial Subrogation

2014Na300715 Demurrer against distribution

Aaaaaa Fund

LectureS, Korea

Daegu District Court Decision 2013Da302431 Decided January 28, 2014

2014.06.18

2014.07.16

1. Revocation of a judgment of the first instance;

2. Of the distribution schedule prepared by the said court on July 25, 2013, the amount of 13,180,173 won for Defendant Kangs, the amount of 5,152,715 won for the Republic of Korea, and the amount of 173,360,410 won for the Plaintiff, among the distribution schedule prepared by the said court on July 25, 2013, shall be corrected to KRW 191,693,298, respectively.

3. The total costs of the lawsuit shall be borne by the Defendants.

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged in Gap evidence 1 to 8 and 11 (including each number), by taking into account the whole purport of the pleadings:

A. On May 2, 192, theff bank completed the registration of the establishment of a mortgage (hereinafter referred to as the “mortgage of this case”) with respect to the Portj and its ground buildings (hereinafter referred to as the “real estate of this case”) located in the north-gu, North-gu and the Dog on May 2, 1992.

B. On August 24, 2007, Dog concluded a credit guarantee agreement with the Plaintiff (hereinafter “the instant credit guarantee agreement”) and received a written credit guarantee from the Plaintiff. On August 27, 2007, Dog borrowed KRW 200,000,000 from theff bank as security (hereinafter “instant loan”).

C. On March 20, 2012, Dog caused a credit guarantee accident in which the repayment of the loan was overdue, and the Plaintiff, on June 28, 2012, on behalf of Dog, paid KRW 173,360,410 out of the instant loan to theff bank (170,000,000 + interest 3,360,410,000) on behalf of Dog pursuant to the credit guarantee agreement in this case. On July 4, 2012, theff bank entered the additional registration of partial transfer of the instant right to collateral security (173,360,410,000) to the Plaintiff on the ground of the said subrogation.

D. After that, at the request of theff bank, the procedure for the auction of the real estate auction on the instant real estate was in progress by the Daegu District Court Branch Branching 2012tae712 (hereinafter “instant auction procedure”). At the instant auction procedure, the Plaintiff reported the amount of KRW 209,454,606 (17,127,540 + damages + damages + damages + KRW 33,657,978 + substitute payment of KRW 2,69,088) on June 18, 2013.

E. On July 25, 2013, the date of distribution of the instant auction procedure, the said court prepared a distribution schedule (hereinafter referred to as “instant distribution schedule”) that distributes KRW 20,617,560 to Defendant Gtt to Defendant Gt, 2, 995,061,103 to the second-class (applicant-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-based limited company, 173,360,410 to the Plaintiff, 173,13,180,173 to Defendant Gtt to Defendant Gt to the Plaintiff, 4, and 5,152,715 to Defendant D, 5,715 to the Republic of Korea.

The Plaintiff appeared on the date of distribution as above, and stated an objection against KRW 13,180,173, which was distributed in the fourth order to Defendant Kt, and KRW 5,152,715, which was distributed in the fifth order to Defendant Kt, and thereafter filed the instant lawsuit on July 29, 2013.

2. The plaintiff's assertion

Pursuant to the credit guarantee agreement of this case, the amount to be repaid to the Plaintiff by Dog on the basis of the date of distribution of the instant auction procedure is KRW 200,290,541 in total ( KRW 173,360,410 in subrogation payment - KRW 232,870 in subrogation payment - 232,870 in subrogation payment recovered from Dogg + damages calculated according to the interest rate determined by the Plaintiff from June 28, 2012, the date of subrogation, to July 25, 2013, the date of distribution, 24,456,131 in subrogation payment + the expenses incurred in preserving, transferring, and exercising the rights acquired through the performance of guaranteed obligations ( KRW 2,706,870 in subrogation payment).

In the event that the Plaintiff fulfilled the guaranteed obligation, the Plaintiff is the subrogated person with respect to the security provided to the obligee by Dog, who is entitled to the reimbursement of the obligation under the credit guarantee agreement of this case. Article 482(1) of the Civil Act provides that a person who subrogated the obligee may exercise his/her right to claim and guarantee to the extent that he/she can claim reimbursement by his/her right. Thus, within the scope of the maximum debt amount of the mortgage of this case, the said damages and substitute payment are distributed to the Defendants, the subordinate right holder, within the scope of the maximum debt amount of the mortgage of this case, the said distribution schedule of this case must be revised as stated

3. Determination

In cases where a subrogation has been made with respect to a part of a claim, the subrogation shall acquire existing claims and rights to collateral held by a creditor in proportion to the value of the performance performed by him/her in accordance with Article 483(1) of the Civil Act. In cases of receiving dividends through the exercise of a right to collateral security, the amount that the former mortgagee is entitled to receive without subrogation within the scope of the amount of the claim for indemnity should be distributed in proportion to the amount of the claim for reimbursement. If there is an agreement between the former mortgagee and the debtor on delay, the damages for delay under such agreement shall also be included in the claim for collateral security and the amount that the former mortgagee is entitled to receive by subrogation (see, e.g., Supreme Court Decision 2013Na

In full view of the aforementioned evidence and the purport of the argument as indicated in Gap 9, 10, 12, etc., the plaintiff and Dog agreed to reimburse not only the amount of the guaranteed obligation to the plaintiff but also the amount of the guaranteed obligation from the date of performance of the guaranteed obligation to the date of repayment, and the expenses incurred in the preservation, transfer, and exercise of the rights acquired by the plaintiff from the date of performance of the guaranteed obligation to the date of repayment. As of July 25, 2013, as of the date of distribution of the auction procedure of this case, Dog agreed to reimburse not only the amount of the guaranteed obligation to the plaintiff, but also the amount of the guaranteed obligation to the plaintiff, as of July 25, 2013, 200, 290, 360, 410 - 232,870 won - 410 - 260% of the principal amount of the guaranteed obligation to the plaintiff, 270% of the total amount of the guaranteed obligation to the plaintiff 267777 g of this case.

Examining the above facts in light of the legal principles as seen earlier, the PP securitization specialized in the transferee of theff bank if the Plaintiff had not been subrogated for the payment of KRW 170,00,00 and KRW 170,000 on behalf of the Plaintiff and KRW 23,795,342 per annum from June 28, 2012 to July 25, 2013, aggregate of KRW 197,15,752 on the amount of delayed payment calculated at the rate of 13% per annum from June 28, 2012 to July 25, 2013, the Plaintiff, who was subrogated for the loan principal of KRW 170,00,00, KRW 1705,752, shall be deemed to have the right to receive additional dividends of KRW 197,15,700 on the amount of dividends to the Plaintiff, KRW 173,360,410 on the amount of dividends to the Plaintiff, KRW 1715,51315,5131,571,57

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted in its entirety on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, so the judgment of the court of first instance is revoked, and it is so decided as per Disposition by the decision to correct the distribution schedule as above.