Hansung Co., Ltd. (Law Firm Squa, Attorney Lee In-bok, Counsel for defendant-appellant)

A limited liability company specializing in misunderstanding of infant age (Law Firm, etc., Counsel for the defendant-appellant)

April 4, 2013

Jeonju District Court Decision 201Na1377 decided November 22, 2012

1. The judgment of the first instance shall be modified as referred to in paragraph (2);

2. A. A. Of the distribution schedule prepared on June 7, 2012 by the said court with respect to the auction of real estate rent cases, the amount of dividends against the Plaintiff shall be corrected to KRW 520,318,400, and KRW 2,976,653,757 to the Defendant, and KRW 2,456,335,357 to KRW 2,456,357, respectively.

B. The plaintiff's remaining claims are dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

The judgment of the first instance court is revoked. Of the distribution schedule prepared on June 7, 2012 by the previous District Court in relation to the auction case of real estate rent in the Jeonju District Court, the amount of dividends against the plaintiff shall be KRW 520,362,737, and the amount of dividends to the defendant shall be KRW 2,976,653,757, and the amount of dividends to the defendant shall be KRW 2,456,291,020 (the plaintiff shall correct the date of preparation of the distribution schedule at the trial and reduce the amount of dividends seeking correction).

1. Basic facts

A. The Real Estate Co., Ltd. (hereinafter referred to as the “Real Estate”) is each of the real estate listed in the separate sheet owned by it (hereinafter referred to as “each of the instant real estate”; according to the attached order, each of the “Real Estate 1, 2, 3, 4, 4, 5, 6, 6, 7, 8, 8, and 9, 1,000, 1,000,000,000,000,000,000,000,000,000,000,000,000,000,

On July 21, 2009-296 July 29, 2009, the Industrial Bank of Korea 1,800,000,000-30, 2009-305 on July 10, 2010 (No. 60720) Industrial Bank of Korea 60,000,000 on December 10, 2010 (No. 60720) the Industrial Bank of Korea 60,000,000, 2010-476 additional contract on December 10, 2010 (No. 60721)

On July 21, 2009-296 July 29, 2009, the Industrial Bank of Korea 1,800,000,000-30, 2009-305 on July 10, 2010 (No. 60720) Industrial Bank of Korea 60,000,000 on December 10, 2010 (No. 60720) the Industrial Bank of Korea 60,000,000, 2010-476 additional contract on December 10, 2010 (No. 60721)

3. Table 3. Industrial Bank of Korea of December 10, 2010 (No. 60719) No. 1,800,000,000 to December 10, 2010, the Industrial Bank of Korea of December 10, 2010, attached to the joint collateral list 600,000,000 on December 10, 2010 (No. 60721, the Industrial Bank of Korea of December 10, 2010 (No. 60721, the Industrial Bank of Korea of December 10, 2010)

On July 9, 2010-476 December 10, 2010, attached Table 1,800,000,000 Industrial Bank of Korea (No. 60719) 1,80,000,000,000 additional contract 209-296 December 10, 2010 (Industrial Bank of Korea No. 60721) No. 1,100,000,000 on December 10, 2010 (the Industrial Bank of Korea No. 60721, 600,000,000-477 on March 11, 2011)

5. A table contained in the main sentence: (i) the Industrial Bank of Korea of December 10, 2010 (No. 60719) 600,000,000 the Industrial Bank of Korea of December 10, 2010 (No. 60720), the Industrial Bank of Korea of December 10, 2010 (No. 60720), which entered into an additional contract for 2010-476 on December 10, 2010 (the Industrial Bank of Korea of 60721, the Industrial Bank of Korea of 1,100,000,000,000-477 on December 10, 2010 (No. 60721, the Industrial Bank of Korea of Korea of 60721, Mar. 11, 2011).

On December 11, 2010 (No. 60719) the Industrial Bank of Korea of December 10, 2010 (No. 60720), the Industrial Bank of Korea of December 10, 2010 (No. 60720), the Industrial Bank of Korea of December 10, 2010 (No. 60720), 1,100,000,000-476 additional contract on December 10, 2010 (the Industrial Bank of Korea of December 10 (No. 60721))

On July 9, 2010-476 December 10, 2010, the Joint Security Record No. 7. 1,800,000 Industrial Bank of Korea (No. 60719) 1,80,000,000,000 additional contract 209-296 December 10, 2010 (No. 60721) No. 1,100,000,000 on December 10, 2010 (the Industrial Bank of Korea No. 60721)

On December 11, 2010 (No. 60719) the Industrial Bank of Korea of December 10, 2010 (No. 60720), the Industrial Bank of Korea of December 10, 2010 (No. 60720), the Industrial Bank of Korea of December 10, 2010 (No. 60720), 1,100,000,000 20-476 additional contract on December 10, 2010 (No. 60721), the Industrial Bank of Korea of December 10, 2010 (No. 60721)

On December 10, 2010 (No. 60719), the Industrial Bank of Korea of December 10, 2010 (No. 60720), the Industrial Bank of Korea of December 10, 2010 (No. 60720), the Industrial Bank of Korea of December 10, 2010 (No. 60720), which entered into an additional contract for 600,000,000-476 on December 10, 2010 (No. 60721) with the Industrial Bank of Korea of December 10, 2010 (No. 60721)

B. On April 18, 201, according to the Industrial Bank of Korea’s application for voluntary auction of each of the instant real estate (hereinafter “instant auction”), the Industrial Bank of Korea rendered a decision to voluntarily commence the auction on April 18, 201. However, each of the instant real estate was sold in a lump sum at KRW 3,050,000,00. Upon the instant auction, the instant auction court prepared a distribution schedule for KRW 45,829,800 among the amount to be actually distributed on May 29, 2012 to Nonparty 1 and eight, who are the wage creditors, and KRW 3,031,751,423 among the amount to be distributed on May 29, 2012, the Plaintiff distributed KRW 45,829,8,290, and KRW 2,976,613,333 of the Industrial Bank of Korea, each of the remaining amount to be distributed to the Defendant, and the Plaintiff prepared the distribution schedule at KRW 5085,580.

C. After that, the instant dividend court prepared a distribution schedule (hereinafter “instant distribution schedule”) that distributes KRW 45,829,80 in total to Nonparty 1 and eight other persons, a wage obligee, and distributes KRW 9,308,290 in Gunsan-si, a second priority holder (the pertinent tax), and distributes KRW 2,976,653,757 in total to the Defendant (hereinafter “instant distribution schedule”). On the same day, the Plaintiff maintained an objection against KRW 568,032,850 among the Defendant’s dividends on the same day.

D. On June 5, 2012, the Plaintiff filed a lawsuit of demurrer against the distribution table of this case with the Jeonju District Court Branch.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1 through 3 (including each number, hereinafter the same shall apply), Eul evidence 1 and 2, and the purport of the whole pleadings

2. The plaintiff's assertion

A. The right to collateral security established on each real estate of this case is the joint collateral security that covers the same claim by the same joint collateral list (No. 2009-296, 2010-476, and 2010-477). As to each joint collateral security of this case, the amount of the right to collateral security secured by each of the real estate of this case, for which the joint collateral security has been established pursuant to Article 368(1) of the Civil Act, should be determined and distributed by determining the apportionment of the right to collateral security for each of the real estate of this case. Accordingly, the amount of the defendant, who is the first priority collateral security for the first and second real estate of this case, shall be calculated as KRW 1,170,474,380, and the remaining amount of dividends shall be distributed to the plaintiff as the second priority collateral security holder.

B. However, the instant auction court did not apply the principle of joint mortgage but did not consider the share of the liability of other real estate on which the joint collateral security was created, and calculated individually the amount of dividends for each real estate at the same time as the point of establishment of the first collateral security (No. 1, 2 real estate, 3, 4, 7 real estate, 5, 6, 8, 9 real estate) and distributed all remaining dividends for the first and second real estate to the Defendant, who is the first collateral security.

C. Therefore, the amount of dividends against the Plaintiff out of the instant dividend table shall be KRW 520,362,737, and the amount of dividends to the Defendant shall be KRW 2,976,653,757, respectively, to KRW 2,456,291,020.

3. Determination

A. Legal principles on simultaneous distribution of auction proceeds of the property on joint collateral security

1) Article 368(1) of the Civil Act provides, “In cases where a mortgage has been created on several immovables as security for the same claim, if the proceeds of auction are distributed simultaneously in proportion to the proceeds of auction of each immovable, the apportionment of the claim shall be determined in proportion to the proceeds of auction of each real estate” with respect to the proceeds of auction of the entire proceeds of auction of the object of joint mortgage, so as to distribute the proceeds of auction of the entire proceeds of auction of the object of joint mortgage to the owners of each real estate and the next-order mortgagee and other creditors’ interests. This applies to joint collateral mortgages (see Supreme Court Decision 2005Da14502, Oct. 27, 2006).

2) Therefore, if the proceeds of the auction of the property jointly mortgaged are distributed at the same time, it is not permitted to obtain satisfaction from only a certain real estate auction proceeds by the intention of the joint mortgagee, but only a share of the secured debt in proportion to the auction proceeds of each real estate is divided, and the joint mortgagee may obtain a preferential reimbursement from each real estate, and the share in excess of the share must be appropriated for repayment by the junior mortgagee.

3) Meanwhile, in the case of a joint collateral security, either party may register the joint collateral as well as the time of the establishment of the initial collateral security and add the object of the joint collateral security to the object of the joint collateral security. Whether each contract and registration of the joint collateral security concerning the multiple collateral security are effected simultaneously or at the same time is made separately by each mortgage. As a result, one joint collateral security may occur where a subordinated mortgage is established prior to the addition of the joint collateral in one joint collateral security, and several joint collateral mortgages are set differently by each joint collateral security. These circumstances do not affect the nature of the joint collateral, but need not affect the nature of the joint collateral, determine the amount of the priority mortgage secured by each joint collateral by deducting the amount of each joint collateral security from the amount of each joint collateral, and determine the apportionment of liability by each collateral, based on which each joint collateral is apportioned.

B. Review of the instant case

Based on the above legal principles, we examine the legitimate amount of dividends in the auction of this case.

1) Legal relationship of each real estate of this case

If the right relationship of the right holder with respect to each real estate of this case is intended, the following

Table 1> Legal relationship by each real estate of this case

A person shall be appointed.

A) Each of the secured claims, set forth in No. 209-296 of the maximum debt amount set forth in each of the instant real estate, is a joint collateral security established to secure the same claim (hereinafter “joint collateral security”).

B) Each of the collective security rights, set forth in Article 2010-476 of the Inventory of Joint Security, with the maximum debt amount set forth in each of the instant real estates, is a joint collateral security established to secure the same claim (hereinafter “second joint collateral security”).

C) Each of the collective security rights, set forth in No. 201,110,000 won with the maximum debt amount set forth in each of the instant real property, as well as the joint collateral security established to secure the same claim (hereinafter “third joint collateral security”) is a joint collateral security established to secure the same claim.

D) Each right to collateral security created on the immovable property Nos. 1 and 2 is a joint collateral security created to secure the same claim (hereinafter “Plaintiff’s joint collateral security”).

E) Each right to collateral security established under Articles 4 through 9 is a joint collateral security created to secure the same claim (hereinafter “fourth joint collateral security”). The maximum debt amount set forth in Articles 4 through 9 is KRW 1 billion, the debtor’s actual mortgage, the plaintiff of the right to collateral security, and the joint collateral security list No. 201-84.

2) Formation of an individual dividend foundation

A) Principles for the preparation of individual distribution schedule

Although each real estate of this case was sold en bloc, since creditors entitled to receive dividends from the proceeds of each real estate are different, it is in principle to form the so-called individual distribution foundation for each real estate proceeds, and prepare a separate distribution schedule for each proceeds of sale. Even if each real estate distribution schedule was prepared as one of the real estate sales proceeds, this is merely an adding up the amount of dividends of each creditor under the distribution schedule for each real estate sales proceeds (see Supreme Court Decision 2001Da66291, Sept. 5, 2003). However, as the distribution schedule was already prepared as one of the real estate sales proceeds, the validity of the amount of dividends is examined based on the amount of dividends under the above distribution schedule (the aggregate amount for each creditor).

B) Calculation of the amount to be distributed to each real estate of the instant case (=sale price + interest on sales price)

(1) The amount to be distributed to each real estate of this case shall be determined by dividing the total amount to be distributed by the "minimum sale price ratio of each real estate" (Article 101(2) of the Civil Execution Act). In this case where the data on "minimum sale price" of each real estate of this case was not submitted, the defendant did not raise an objection to the calculation of the distribution ratio based on the "minimum sale price" instead of "minimum sale price" (the plaintiff asserted that the minimum sale price ratio of each real estate of this case was the same as the "minimum sale price ratio" and "appraisal price" were the same as the "minimum sale price ratio" of each real estate of this case in the auction of this case, since the court of first instance decided to reduce the minimum sale price of each real estate of this case from the appraisal price of this case to the same ratio as the "minimum sale price ratio", and the total appraisal of each real estate of this case was determined as the distribution ratio, and the sale price of each real estate of this case shall be calculated by multiplying

(2) However, since Article 368 of the Civil Act on Joint Mortgage applies by analogy to the extent of the auction price of each of the real estate inasmuch as the cost of execution, wage claims, and tax claims that should be distributed preferentially to the defendant and the defendant under the distribution schedule of this case, are in a position similar to the joint mortgage since they have preferential right to payment to all of the real estate of this case, the share of the claim is determined in proportion to the above distribution rate, and as a result, the share of the claim is determined in proportion to the auction price of each real estate, it would be distributed from the amount to be distributed to each real estate at the same rate as above (see Supreme Court Decision 2003Da18401, May 26, 2006, etc.). In calculating the amount to be distributed to each of the real estate of this case in relation to the defendant's right to collateral security, the above amount shall be calculated by multiplying the total amount to be distributed by the execution cost, wage claims, and tax claims [2,97,653,757 won [Calculation of the same amount to be calculated in the same method as above]

(3) Accordingly, when calculating the dividend ratio and source of each real estate of this case, and the amount to be distributed to each real estate of this case in relation to the defendant's right to collateral security, the following attached Table 2>

Table 2> The distribution ratio and the amount to be distributed by each real estate of this case

12,539,420,00 47.744% 1,421,173,570 2481,861,400 9.060 269,684,830 376,740,007.0 210,836,386 41686 4,220,003.163% 94,151,558 91,00,50,501, 570, 5201, 570, 530, 579, 2974, 207, 200, 200, 501, 50, 5011%, 50, 530, 530, 530, 230, 294, 29784, 637684, 2794

C) Calculation of a specific dividend amount

(a) The distribution of dividends in cases where several joint collateral mortgages have been created differently according to the order of priority by the mortgaged property; and

(A) In the instant case, the first joint collateral mortgage and the second joint collateral mortgage are set differently according to the order of priority by each real estate, each of the instant real estate, which is the same property as the object of the mortgage. In such a case, the amount of the secured debt of each of the instant mortgage shall be deducted by the time and later, without any need to follow the time and later, the amount of the secured debt of each of the instant mortgage shall be determined by deducting the amount of the secured debt of each of the instant mortgage, and based on such determination,

(1) The amount of auction proceeds = the amount to be apportioned by each mortgaged property £­ the amount of secured claims in preference to the priority of secured claims.

(2) The proportional ratio of the proceeds of auction = the proceeds of auction of the mortgaged property; (1)/ all the proceeds of auction of the mortgaged property.

(3) The amount of division of the responsibility of the mortgaged property = the amount of the secured claim ¡¿ the proportional ratio of the auction price.

(B) The amount of each joint collateral security shall be calculated from the amount of dividends for each real estate to the extent of the share of the liability for the mortgaged property calculated as above, and if there is any remaining amount of dividends, the amount shall be distributed to the next right holder by each real estate.

(2) calculated on the basis of the share of liability of the property mortgaged by each joint collateral security.

Pursuant to the above formula, the amount of damages for each real estate of Nos. 1 and 7) 2 joint collateral security is calculated as follows:

(A) The amount of share of liability for each real estate of the first joint collateral security;

The apportioned amount of responsibility for each real estate of No. 1 joint collateral security <3>

본문내 포함된 표 부동산 ㉠ ㉡ ㉢ ㉣ ㉤ ㉥ 배당할 금액(원) 선순위 피담보채권액 저당물의 경매대가(원) (㉠－㉡) 전체 공동저당물의 경매대가(원) 경매대가의 안분비율(주8) (㉢／㉣) 저당물의 책임분담액(원) (㉤×18억) 1 1,421,173,570 0원 1,421,173,570 2,600,226,123 (㉢의 합계) 54.66% 983,880,000 2 269,684,830 0원 269,684,830 10.37% 186,660,000 3 210,836,386 6억 원 0 0 0 4 94,151,558 6억 원 0 0 0 5 50,930,546 0원 50,930,546 1.96% 35,280,000 6 684,451,765 0원 684,451,765 26.32% 473,760,000 7 71,439,690 6억 원 0 0 8 74,267,511 0원 74,267,511 2.86% 51,480,000 9 99,717,901 0원 99,717,901 3.83% 68,940,000 합계 2,600,226,123 100% 1,800,000,000

8)Proportional distribution ratio

(B) The amount of share of liability by each real estate of the second joint collateral security; and

The apportioned amount of responsibility for each real estate of Table 4> 2. Joint collateral Security

본문내 포함된 표 부동산 ㉠ ㉡ ㉢ ㉣ ㉤ ㉥ 배당할 금액(원) 선순위 피담보채권액 저당물의 경매대가(원) (㉠－㉡) 전체 공동저당물의 경매대가(원) 경매대가의 안분비율(주9) (㉢／㉣) 저당물의 책임분담액(원) (㉤×6억) 1 1,421,173,570 28억 원 0 376,427,634 (㉢의 합계) 0 0 2 269,684,830 28억 원 0 0 0 3 210,836,386 0원 210,836,386 56.01% 336,060,000 4 94,151,558 0원 94,151,558 25.01% 150,060,000 5 50,930,546 18억 원 0 0 0 6 684,451,765 18억 원 0 0 0 7 71,439,690 0원 71,439,690 18.98% 113,880,000 8 74,267,511 18억 원 0 0 0 9 99,717,901 18억 원 0 0 0 합계 376,427,634 100% 600,000,000

9)Proportional distribution ratio

(3) Calculation of the amount of dividends for Class 1 and 2 real estate

(1) Aggregate of the amounts to be distributed: 1,690,858,400 won.

(2) Dividends on the first priority mortgage: 1,170,540,000 won (total of the amounts to be apportioned by each real estate within the limit of the amount to be apportioned to the property mortgaged).

3. Distribution of dividends to the Plaintiff’s joint collateral security: 520,318,400 won (1-B)

(4) Calculation of the amount of dividends for immovable property 3, 4, and 7

(1) Total amount to be distributed: 376,427,634 won.

(2) Dividends on the second priority mortgage: 376,427,634 won (total of the amounts to be apportioned by each real estate within the limit of the share of responsibility of the mortgaged property).

(5)Calculation of the amount of dividends for immovable property 5, 6, 8, and 9;

(1) Total amount to be distributed: 909,367,723 won.

(2) Dividends on the first priority mortgage: 629,460,000 won (total of the amounts to be apportioned by each real estate within the limit of the amount to be apportioned by responsibility of the property mortgaged).

(3) Dividends for the second priority mortgage: 279,907,723 won (1-B)

(6) Total sum of the dividend amounts of the plaintiff and the defendant

(A) The plaintiff: 520,318,400 won = (the amount of the plaintiff's joint collateral security on real estate 1 and 2)

(B) Defendant: 2,456,335,357 won (=the dividend amount of 1,170,540,000 won for the first joint collateral mortgages concerning real estate 1 and 2 + the dividend amount of 376,427,634 won for the second joint collateral mortgages concerning real estate 3, 4, and 7 + the dividend amount of 629,460,000 won for the first joint collateral mortgages concerning real estate 5,6,8, and 9 + the dividend amount of 279,907,723 won for the second joint collateral mortgages concerning real estate 5,6,8, and 9)

4. Conclusion

Therefore, among the distribution schedule prepared by the auction court on June 7, 2012, the amount of dividends to the plaintiff shall be adjusted to KRW 520,318,400, and the amount of dividends to the defendant 2,976,653,757 shall be adjusted to KRW 2,456,335,357, respectively. Thus, the plaintiff's claim shall be accepted within the above scope of recognition and the remaining claims shall be dismissed as there is no reason. Since the judgment of the court of first instance that partially different conclusions are unfair, the court of first instance shall accept part of the plaintiff's appeal and revise the judgment of the court of first instance as above, and it is so decided as per Disposition.

[Attachment]

Judges Lee Dong-Ba (Presiding Justice) (Presiding Justice)

Note 1) The collateral security recorded in the same joint collateral list is a joint collateral security.

Note 2) The amount of the existing actual dividend (3,031,751,423) plus the interest on the sales price additionally incurred.

Note 3) The additional proceeds of sale were additionally distributed to the Defendant.

4) In the first instance court, the lower court laid down less than the third decimal place in calculating the dividend ratio, as pointed out by the Plaintiff, there was a problem that the sum of the dividend rates for each real estate as well as the total sum of the dividends for each real estate is less than 100% and that of the dividends for each real estate does not coincide with the total amount to be distributed. In the first instance court, in calculating the dividend ratio, it is rounded off to the decimal point below the fourth place in calculating the dividend ratio, and it is rounded off to the first place below the decimal point in calculating the amount to be distributed (in this case, there was no problem of such inconsistency).

5) Article 368(1) of the Civil Act refers to “the cost of auction for each real estate” (see Supreme Court Decision 2001Da66291, Sept. 5, 2003).

Note 6) The nature of the right to collateral security is natural within the scope of the maximum debt amount.

7) In the case of the Plaintiff’s joint collateral mortgage, the order of priority by the object of mortgage is equal, and there was no problem of proportion distribution as above, and the calculation was omitted as there was no possibility of being distributed in the case of the third and fourth joint collateral mortgage.

Note 8) The calculation was made against the third place below the decimal point.

9) The calculation was made against the third place below the decimal point.

10) In principle, the amount of each real estate should be calculated. However, in the case of real estate 1 and 2, the same order of priority by joint collateral security is identical, and the amount of dividends is calculated accordingly, it would result in the same outcome even if the amount of dividends is calculated in the same manner as above for convenience. The same applies to the above method