Supreme Court Decision 2013Da202755 (Law No. 16, 2014)

Where a subrogation has been made, the subrogation shall acquire the rights concerning the claim and security held by the creditor.

In the event that several persons subrogated for all of the secured debt amount by paying a part of the secured debt by subrogation, the subrogated person is entitled to complete the entire amount of the secured debt in proportion to the amount of the repayment.

Article 35 of the Framework Act on National Taxes

2014Na31817 Demurrer against distribution

Maximum 00

000

Tong management support 201Gadan6839 decided February 3, 2012

on October 16, 2014

November 13, 2014

1. Of the judgment of the court of first instance, the part against the Defendants in the judgment is modified as follows.

A. Of the distribution schedule prepared on July 6, 2011 by the said court with respect to the auction case of real estate rent of 2010, the amount of dividends to the Plaintiff (Appointed Party) shall be KRW 000,000, KRW 000, and KRW 000,000, and KRW 000,000,000,000,000,000,000,000,000,000,000,000.

B. The remaining claims against the Defendant 00 by the Plaintiff (Appointeds) and the Appointeds and the Defendant 000 are all dismissed.

2. Of the total litigation costs, the portion arising between the Plaintiff (Appointed) and the Appointeds (Appointeds) and the Defendant 00 shall be borne by the Plaintiff (Appointeds) and the Appointeds (Appointeds), the remainder by 00, the remainder by Defendant 00, the Plaintiff (Appointeds) and the Appointeds (Appointeds), and the part arising between Defendant 00 and Defendant 000, respectively.

1. Purport of claim

Of the dividend table (hereinafter referred to as “instant dividend table”) prepared by the said court on October 00, 200 with respect to the auction case of real estate rent of 2010 Y200, the Changwon District Court: KRW 000,000 for each of the dividends against the plaintiffs (appointed parties, referring to the plaintiff, etc.) and the designated parties (hereinafter referred to as “the plaintiff, etc.”) in the dividend table (hereinafter referred to as “the dividend table in this case”); KRW 000,000 for each of the dividends against the defendant, and KRW 00 for the first instance court’s co-defendant 00 (hereinafter referred to as “the mortgagee”), and KRW 00 for each of the dividends against the defendants against the defendants (limited to the amount of dividends against the defendant, including the plaintiff and the designated parties), the court’s dismissal of each of the dividends in this case against the defendants against the defendants (hereinafter referred to as “the Defendants”) is limited to KRW 100,000,000 for each of the dividends against the plaintiff, etc.

2. Purport of appeal

Among the judgment of the first instance court, the part against Defendant 00 and the part against Defendant 000 shall be revoked, and each of the claims against the Plaintiff, etc. corresponding to the revoked part shall be dismissed.

1. Basic facts

A. Red00 completed the registration of ownership transfer for 00/100 of each real estate listed in the separate sheet (1) through (4) on June 18, 2004 and each real estate listed in the separate sheet (5), (6).

B. On June 18, 2004, 00 cooperatives (hereinafter referred to as "the 00 Livestock Cooperative") established the right to collateral security (hereinafter referred to as "the right to collateral security (hereinafter referred to as "the right to collateral security") with respect to each real estate listed in the separate list from 000 on June 18, 2004, and individually named, the right to collateral security (hereinafter referred to as "the right to collateral security of this case") with respect to each real estate listed in the separate list from 00,000 won, and granted a loan to 0 million won (hereinafter referred to as "the loan of this case").

C. Defendant Lee 00 completed the registration of ownership transfer with respect to shares of 000/00 out of the 5 and 6 real estate of this case on October 00, 000, and Defendant Lee 1 completed the registration of ownership transfer with respect to the 6 real estate of this case on October 000.

D. On October 00, 000, the non-hoon and the Plaintiff completed the registration of ownership transfer as to shares of 00/00 among the non-real estate No. 3 of this case and shares of 000/100 among the real estate No. 5 of this case, and one third of the real estate No. 1, 2, and 4 of this case.

E. 00 00 00 00 00 00 00 00 00 00 where the interest and interest of the instant loan were in arrears, the Plaintiff (i.e., the principal KRW 00 + interest KRW 00 + interest KRW 00 + KRW 00 for expenses). 00 000 won where each subrogation was made on behalf of 00 00 % (i.e., principal + interest KRW 00 + interest KRW 00 + KRW 00 for expenses) and completed the registration of partial collateral security from the 00 00 00 f

F. Defendant 00 completed the registration of partial collateral security transfer for the real estate of this case from the 00 stable cooperative, after he subrogated for the remainder of the principal and interest of this case 00 won out of the principal and interest of this case and repaid the total amount of the said loan by subrogation.

G. At the time of subrogated payment of the principal and interest of the above loan by the Plaintiff, 000, and 00 U.S., the overdue interest rate for 17.6% per annum was applied to the above loan.

H. The Lee Sang-hoon applied for a voluntary auction as to each of the instant real estate (as to the instant real estate Nos. 1 through 4, the shares of 1/300, and shares of 00/00 for the instant real estate No. 5). The Changwon District Court rendered a voluntary decision to commence the auction as to Oct. 00, 000 at the Changwon District Court No. 2010,000, and the entry registration was completed.

I. After that, 1.00.00.00, 100, 200 was later acquired by transfer the claim for indemnity due to the above subrogation against 0000, and completed the registration of transfer with respect to the above right to collateral security under the name of 00.00.00.

(j) In the auction procedure with respect to each of the instant real properties, the auction court, on July 6, 201, distributed the amount of KRW 000 to be actually distributed to the Plaintiff, etc., who is a collateral security, and the Defendant 00, as the first priority, drafted the instant distribution schedule to distribute each of the amounts of KRW 000,000, and KRW 00,000, the amount of subrogation to the Plaintiff, etc., who is a collateral security, and the Defendant, who is the owner, as the second priority, to the Defendant 00, who is the right holder of provisional attachment, and KRW 00,000,00

(k) On the date of the above distribution, the Plaintiff et al. stated their respective objections as to the total amount of dividends against Defendant 000 of the instant distribution schedule, the total amount of dividends received by Defendant 00 as a person holding the provisional seizure and the amount of dividends received by Defendant 00 as a person holding the provisional seizure, and KRW 30,727,370 of the amount of dividends against 00, and the amount of dividends received as a person holding the right to collateral security, and filed the instant lawsuit on July 12, 201, and filed the instant lawsuit on July 12, 2011.

2. Judgment on the grounds of claim

A. Relevant legal principles

In cases where a subrogation has been made with respect to a part of a claim, the subrogation shall acquire the previous creditor’s claim and right to collateral in proportion to the value of the performance performed by the mortgagee pursuant to Article 483(1) of the Civil Act, and where several persons make a substitute payment for a part of the secured claim by subrogation for all the amount of the secured claim and then made an additional registration for partial transfer of the secured claim after paying the entire amount of the secured claim, the subrogation shall be entitled to complete the entire amount of the secured claim in proportion to the value of the performance performed by the claimant. As such, in cases where the former mortgagee and the debtor have agreed to pay dividends by exercising the right to collateral within the scope of the amount of the secured claim, the amount that the latter mortgagee is entitled to receive without subrogation shall be distributed in proportion to the amount of each secured claim. If there was an agreement between the former mortgagee and the debtor on delayed payment based on such agreement, it shall also be included in the amount that the former mortgagee can receive dividends, which is distributed by subrogation (see, e.g., Supreme Court Decisions 200Da37319, Jan.

B. The judgment of this Court

1) Examining the facts acknowledged earlier in light of the aforementioned legal principles, the amount of the loan principal subrogated by the Plaintiff, etc. and the Defendant, a mortgagee, could have been distributed on the date of distribution if they had not been subrogated by the Plaintiff, etc., shall be the total amount of 00 won (=OO0 won + OO0 won + 00 won), which is the date of subrogation, for the principal of the loan subrogated by him/her, from February 4, 2010 or from February 10, 201 to July 6, 201, the date of payment, according to an agreement between the OOxi and the Red00, which is the date of distribution (see the agreement between the Plaintiff, etc. and the Defendant, e.g., the sum of 17.6% delayed interest rate of 17.6% (see the following table) (=00 won + 00 won).

In addition, the plaintiff et al. and the defendant Lee 00 shall be apportioned in preference to the subordinate creditors according to the ratio of the portion subrogated to the above 00 won.

1) OOOx x 0.176 x 518/365 (from February 4, 2010 to July 6, 201) and the same shall apply hereinafter.

2) OOO x 0.176 】 512/365 (from February 10, 201 to July 6, 201)

As such, the amount that the plaintiff et al. is entitled to receive fairly in the auction procedure of this case is the plaintiff's OOO (=OOOO 】 OOO/OOO) and the selected's 00 is the plaintiff's OO (=OOOO x OO/OOO x x the plaintiff).

2) In the instant dividend procedure, the Plaintiff et al. received dividends from each of the OO members, and thus, the Plaintiff et al. should pay additional dividends to the Plaintiff (OOO members - OO directors - OO directors - OO directors - O directors - 00. Of the judgment of the first instance court, the amount of dividends for this 00 shall be reduced to the amount of OO directors. The Plaintiff et al. has already been confirmed to have been paid more than the amount of OO directors (OO directors - OO directors). Accordingly, the Plaintiff et al. should eventually be paid more to the Plaintiff et al. (i.e., the amount of dividends for this 00).

3) Meanwhile, in the instant dividend procedure, Defendant 000 received dividends from Defendant 00 (provisional attachment right holder) in the second order, and Defendant 00 (provisional attachment right holder) received dividends from Defendant 00 (provisional attachment right holder), barring any special circumstance, the amount of dividends to Defendant 00 (provisional attachment right holder) should be distributed to the Plaintiff, etc.

C. Sub-committee

Therefore, among the dividend table of this case, the dividend amount to the plaintiff should be revised as the OOO, the dividend amount to the selected party 00 as the OOOO, and the dividend amount to the defendant 00 (provisional attachment authority) as the OOO (=OOOO - OO won) respectively.

3. Conclusion

Therefore, the plaintiff et al.'s claim against the defendant Lee 00 shall be accepted within the scope of the above recognition, and the remaining claim shall be dismissed as it is without merit, and the claim against the defendant Lee 000 shall be dismissed as it is without merit. Since the part against the defendants in the judgment of the court of first instance is unfair, the part against the defendants in the appeal against the defendant Lee 00 and the part against the defendant in the judgment of the court of first instance shall be accepted, and the part against the defendants