[1] The method of calculating the amount of a claim to be distributed by a mortgagee who takes priority over the creditor requesting auction in an auction procedure to exercise a security right

[2] In a case where the amount of part of the secured debt not distributed to the creditor is distributed to the junior creditor, etc. because the mortgagee who takes priority over the creditor requesting auction from the amount of distribution in the auction procedure to exercise the security right is not entitled to a claim against the creditor requesting auction from the amount of distribution (negative)

[1] Even if a mortgagee who takes precedence over a creditor requesting auction in an auction procedure to exercise a security right fails to demand a distribution, he/she can naturally receive a distribution according to the order within the scope of the maximum debt amount on the registry. Thus, even if such mortgagee did not submit a claim statement, the distribution may not be excluded from the distribution. In addition, even if the mortgagee has submitted a claim statement concerning the amount of the secured claim before the auction date, he/she may submit a new claim statement to revise the amount of the secured claim until the distribution schedule is prepared. In such cases, the distribution court shall calculate the amount of the claim that the mortgagee is entitled to receive within the scope of the maximum debt amount, based on the claim statement and evidence

[2] In the auction procedure to exercise the security right, if the mortgagee who takes priority over the creditor requesting auction submits a claim statement concerning the amount of the secured claim before the auction date or revises the distribution schedule until the distribution schedule is prepared thereafter, and if the distribution was conducted pursuant to the established distribution schedule, unlike the case where the distribution should be made based on the maximum debt amount on the register because the mortgagee failed to submit the claim statement at all, the distribution should be made based on the amount of the claim on the submitted or revised statement of claim, and as such, the distribution cannot be made in excess of the reported amount of claim, even if the amount of distribution was distributed to the subordinate creditor, etc., even if the amount equivalent to part of the secured claim which was not distributed to the creditor due to the failure of the senior mortgagee claiming the amount of distribution, it cannot be deemed that there

[1] Articles 587(2), 653, and 728 of the Civil Procedure Act / [2] Article 741 of the Civil Act; Articles 587(2), 653, and 728 of the Civil Procedure Act

[1] Supreme Court Decision 98Da21946 delivered on January 26, 199 (Gong1999Sang, 349)

Bupyeong Agricultural Cooperative (Attorney Kim Jae- Jae et al., Counsel for the plaintiff-appellant)

Seoul Guarantee Insurance Co., Ltd. and one other (Law Firm the New century, Attorneys Director Iron et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 98Na27755 delivered on April 7, 1999

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

We examine the grounds of appeal.

1. The right under substantive law is not finalized because the distribution schedule was prepared and confirmed and the distribution was conducted in accordance with the finalized distribution schedule. Thus, in case where a person who is liable to receive the distribution did not receive the distribution and received the distribution, the preferential creditor who did not receive the distribution has the right to claim the return of unjust enrichment against the person who received the distribution, as pointed out in the ground of

In addition, even if a mortgagee who takes precedence over a creditor requesting auction in an auction procedure to exercise a security right fails to demand a distribution, he/she may, as a matter of course, receive a distribution according to the order within the scope of the maximum debt amount on the registry. Thus, even if such mortgagee did not submit a claim statement, it may not be excluded from the distribution. In addition, even in cases where the mortgagee has submitted a claim statement concerning the amount of the secured claim before the auction date, he/she may submit again a claim statement that revises the amount of the secured claim until the distribution schedule is prepared. In such cases, the distribution court shall calculate the amount of the claim that the mortgagee shall receive a distribution within the scope of the maximum debt amount by means of the claim statement and evidence, etc. submitted until the preparation of the distribution schedule, unless there are special circumstances (see Supreme Court Decision 9

However, in the event that the mortgagee’s right to collateral security has submitted or revised a claim statement and the distribution schedule was established accordingly, and the distribution was made pursuant to the established distribution schedule, unlike the case where the mortgagee did not submit the claim statement at all, and ought to distribute it on the basis of the maximum debt amount on the register, the amount of claims on the submitted or revised statement of claims cannot be distributed in excess of the reported amount of claims, and as such, even if the amount of distribution could not be distributed in excess of the reported amount of claims, it cannot be deemed that there is no legal ground, even if the amount equivalent to part of the secured claims not distributed to the mortgagee was distributed to the junior creditor, etc.

2. According to the reasoning of the judgment below and the record, on June 12, 1997, the plaintiff, the first mortgagee on July 19, 197, who was awarded a bid to the non-party on June 1997 upon the application of the non-party Gyeonggi Bank, the second mortgagee on the instant real estate owned by the defendant 2, entered the amount less than the amount of the secured claim by mistake in preparing and submitting a claim statement to the distribution court. However, the distribution court prepared a distribution schedule by calculating the amount of dividends, such as deducting the auction expense from the successful bid price, and distributing the remaining amount to the creditors requesting a auction, the lower creditor, or the Defendants, the lower creditor, or the lower creditor, as the claim statement prepared and submitted by the plaintiff, and prepared a distribution schedule by allocating the amount of the secured claim to distribute the remaining amount to the creditors requesting a auction, the lower creditor, the lower creditor, and the lower creditor Seoul Guarantee Insurance Co., Ltd., the lower creditor, as well as the distribution schedule established.

If facts are the same, the Plaintiff, which takes precedence over the creditor applying for auction, submitted only a part of the amount of the secured claim secured by the right to collateral security by mistake in the bond account statement and did not take measures to increase the remaining amount of the claims by the method of revising the claim account statement to the dividend court until the dividend table is prepared, and thus, it cannot be deemed that the amount of the claims in the bond account statement would have been distributed to the lower creditor or the Defendants, the owner, who were junior creditors or owners, without any legal grounds.

Although the judgment of the court below is somewhat inappropriate, the conclusion of rejecting the plaintiff's claim for the return of unjust enrichment is just, and there is no error of law in the misapprehension of legal principles as to the distribution of dividends and return of unjust enrichment to the mortgagee who takes precedence over the creditor applying for auction for the exercise of security right.

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

Justices Lee Jin-hun (Presiding Justice)