The court of auction shall preferentially distribute dividends from the proceeds of the auction of the immovables owned by the debtor to the joint mortgagee.

The auction court shall preferentially distribute from the auction price of the real estate owned by the debtor to the joint mortgagee, and shall additionally distribute from the auction price of the real estate owned by the person who has pledged to secure another's property only if there is a shortage.

Seoul Southern District Court 2015Kadan64128 Decided the distribution

Kim Jong-young

Korea

July 22, 2016

August 19, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Of the distribution schedule prepared by the above court on December 9, 2015, the amount of 92,098,360 won against the defendant shall be 5,259,016 won, and the amount of 0 won against the plaintiff shall be 36,839,344 won, and the amount of 85,523,46 won against the defendant shall be 51,314,079 won, and the amount of 34,209,387 won against the plaintiff shall be corrected, respectively, among the distribution schedule prepared by the above court on December 9, 2015.

1. Basic facts

A. A, who was the president of the former Emp Group, operated YB under the name of BA and C, and Y construction completed the registration of ownership transfer in the name of BAA on June 18, 2001, with the purchase of the OOdong OB OB (hereinafter “instant land”) from the KimCC in the name of BA and EmbB on June 20, 201.

B. Y Construction, on the instant land, was a new construction and sale of the instant aggregate building, which is an underground 4 stories and a 12-story aggregate building, and all the procedures for the said project were completed in the name of Na and NAB registered as a Y Construction Business Operator.

C. After the completion of the instant aggregate building, on October 7, 2004, registration of ownership was completed with 9/10 of the AA’s equity shares and 1/10 of the changedB equity shares, and at the time, the instant land was incorporated into land which is the object of the site ownership of each section for exclusive use.

D. Of the instant condominiums, 204, 205, 206, 207, 208, 221

The plaintiff, on June 1, 2009, who was the wife of the previous BB on June 1, 2009 with respect to heading, 222 (hereinafter referred to as "the household of this case").

The registration of transfer of ownership has been completed in the name.

E. Of the instant households, heading 204, 205, 206, 207 and 208 as joint security.

1. The registration of creation of a mortgage consisting of the maximum debt amount of 364 million won, the debtor, the mortgagee, the mortgagee, and the Seoul Livestock Industry Cooperative, and the registration of establishment of a mortgage consisting of 221 and 222 among the households of this case was completed on June 1, 2009 as joint collateral, with the maximum debt amount of 14 billion won, and the establishment of a mortgage consisting of the debtor, the mortgagee, the mortgagee, and the Seoul Livestock Industry Cooperative.

F. Meanwhile, as of October 21, 2010, the Defendant filed a lawsuit against the Plaintiff, etc. to cancel the registration for the preservation of ownership (No. 1: Seoul Central District Court Decision 2010Gahap122822; Seoul High Court Decision 2012Na17211). On April 19, 2013, the appellate court accepted the Plaintiff’s claim against the Plaintiff (the Defendant in this case) seeking the implementation of the registration for the transfer of ownership on the ground of the restoration of real name with respect to the instant household, but with respect to the land subject to the right to the ownership of the instant household, the lower court rendered a judgment dismissing the Plaintiff’s claim against the Plaintiff (the Defendant in this case) seeking the implementation of the registration for the transfer of ownership on the ground of the restoration of real name with respect to the land subject to the right to the ownership of the instant household. The said judgment was dismissed on September 12, 2013 (Supreme Court Decision 2013Da378969, Mar. 7, 2013).

G. On February 11, 2014, the Defendant completed the registration of ownership transfer for the portion of the building among the instant households in subrogation of A, and completed the registration of seizure for the said portion of the building. The right to site of the instant households was cancelled due to the above final judgment.

H. On January 21, 2015, the Seoul Southern District Court rendered a voluntary decision to commence the auction of this case on January 21, 2015, as Seoul Southern District Court Decision 2015Ma1298 (hereinafter referred to as “instant auction”) regarding the Plaintiff’s co-ownership land corresponding to the part of the building portion among the instant households and the part of the site of the instant household among the instant land at the request of the Seoul Livestock Industry Cooperatives (hereinafter referred to as “instant co-ownership land”).

I. On December 9, 2015, a date of the distribution of the instant auction, the executing court prepared a distribution schedule as shown in the attached Form (hereinafter “instant distribution schedule”). On December 9, 2015, B changed the Plaintiff’s agent, as to KRW 36,839,344 out of the Defendant’s dividends (distribution order 3), 36,839,344 out of KRW 85,523,466 of the Defendant’s dividends (distribution order 4), and filed the instant lawsuit within one week thereafter.

[Ground of recognition] The evidence Nos. 2-1 to 7, Gap evidence Nos. 3, 5, 9, 10, 11, and Eul evidence No. 1;

The purport of all pleadings

2. Determination

A. The plaintiff's assertion

Since the land of this case, which is the object of the auction of this case, is owned by the plaintiff, the defendant who seized the building portion of the household of this case as the creditor of this case cannot receive dividends from the auction proceeds of the co-owned land of this case. Since the distribution schedule of this case was prepared by the defendant to receive the auction proceeds of the co-owned land of this case, it shall be deemed that the defendant distributes the auction proceeds of the co-owned land of this case (the amount equivalent to 40% out of the appraisal proceeds) to the plaintiff

B. Determination

(1) Of several real estate on which joint mortgage is established, if part of the real estate is owned by the debtor, and if part of the real estate is owned by the person who has pledged the property to secure the property at the same time, it is in the position of the person who has pledged the property to exercise the security right to the real estate owned by the debtor by subrogation under the provisions of Articles 481 and 482 of the Civil Act, it is reasonable to deem that Article 368(1) of the Civil Act, which provides that "where several real estate have been mortgaged as security for the same claim, if the proceeds of the auction are distributed at the same time, the division of the claim is determined in proportion to the proceeds of the auction of each real estate, shall be determined in proportion to the proceeds of the auction of the real estate owned by the debtor. Therefore, in such a case, the court of auction shall preferentially distribute the proceeds of the auction of the real estate owned by the debtor to the joint mortgagee, and additionally distribute dividends from the proceeds of auction of the real estate owned by

(2) Along with the instant case, as seen earlier, the establishment registration of a mortgage that was created as a joint security under the joint security of 204, 205, 206, 207, and 208 among the households of the instant case was completed with the maximum debt amount of 364 million won, the debtor, the mortgagee, the mortgagee, and the Seoul Livestock Industry Cooperative, and the maximum debt amount of 1.4 million won, the debtor, the debtor, and the mortgagee, and the mortgagee as the Seoul Livestock Industry Cooperative, respectively, and the establishment registration of a mortgage that was created as a joint security under the joint security of 21,2222, among the households of the instant case. Accordingly, the debtor of each of the instant collective security rights is the plaintiff (the plaintiff is the actual debtor of each of the instant collective security rights

However, there is no evidence to acknowledge it, on the other hand, to the actual owner of the household of this case.

By providing the households of this case as the joint collateral of each of the above collateral, A is in the position of the surety of each of the above collateral security.

In light of the above facts in light of the above legal principles, the claims of the Seoul Livestock Industry Cooperatives, which are the above collective security right, are preferentially distributed out of the auction price of the co-owned land owned by the plaintiff, who is the debtor, and only if there is a shortage, it is additionally distributed out of the auction price of the portion of the building among the households of this case, which are owned by the property surety, and the distribution schedule of this case was prepared in an appropriate manner as above, so the plaintiff'

3. Conclusion

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