[1] Whether the latter part of Article 368(2) of the Civil Act may apply mutatis mutandis to a mortgagee in a case where a mortgagee of an auction real estate was at a disadvantage than a case of simultaneous dividends under Article 368(1) of the Civil Act as a result of a prior auction of part of the real estate owned by the employer and a prior wage claim was preferentially paid out of the auction price (affirmative)

[2] In a case where a mortgagee who subrogated to a wage creditor fails to demand a distribution at an auction procedure until the date of a successful bid, whether a wage creditor may receive a distribution within the limit of the amount of the claim for provisional seizure (affirmative)

[1] Article 368 of the Civil Act, Article 37 of the Labor Standards Act / [2] Article 37 of the Labor Standards Act, Article 368 of the Civil Act, Articles 88 and 268 of the Civil Execution Act

[1] [2] Supreme Court Decision 2000Da32475 decided Sep. 29, 200 (Gong2000Ha, 2216) Supreme Court Decision 2002Da48399 decided Dec. 10, 2002 (Gong2003Sang, 351) / [1] Supreme Court Decision 94Da21160 decided Feb. 23, 1996 (Gong196Sang, 1031), Supreme Court Decision 97Da9352 decided Dec. 22, 1998 (Gong199Sang, 183), Supreme Court Decision 200Da32475 decided Sept. 29, 200 (Gong2000Sang, 2216Sang, 2509) / [1] Supreme Court Decision 97Da57975 decided Apr. 197, 2095]

Han Bank Co., Ltd. (Law Firm Democratic, Attorneys Yoon Jin-young et al., Counsel for the defendant-appellant)

New Bank Co., Ltd.

Seoul High Court Decision 2004Na74813 decided May 31, 2005

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

A lien on wage claims is so-called legal security right which can be paid preferentially to claims secured by mortgages, taxes, etc. on the whole property of the employer. Where part of the real estate owned by the employer has been sold first and the wage creditors have been preferentially paid out of such auction proceeds with the lien, and the mortgagee of such auction proceeds have been disadvantaged than the simultaneous dividends under Article 368(1) of the Civil Act, the latter part of Article 368(2) of the Civil Act shall apply mutatis mutandis, and where the wage creditors have received disadvantage as above at the same time from several real estate at the same time, the mortgagee who has received such disadvantage may receive preferential dividends from other real estate in subrogation to the extent of the amount which would have received reimbursement from other real estate within the extent of the amount which would have received from other real estate at the same time. In this case, even if the mortgagee subrogated to the wage creditors pursuant to Articles 268(1) and 84(1) of the Civil Execution Act applied mutatis mutandis to the auction procedure to exercise the security right, he/she may receive dividends only by subrogation before the completion period of the auction procedure to demand the distribution.

In the same purport, the court below is justified in holding that the plaintiff was not entitled to participate in the distribution in subrogation of wage creditors, and there is no evidence that the plaintiff did not make a demand for distribution by the completion date of the demand for distribution in the real estate auction procedure of this case, and there was a provisional seizure of the real estate of this case, and that there was no evidence that the plaintiff submitted the documents proving that the preserved claim for provisional seizure has preferential right to payment before the date of distribution. There is no error

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ran (Presiding Justice)