[1] The method of disposing of the deposit in a case where the contract establishing a right to collateral security was cancelled as a fraudulent act after the court deposited the dividend after a decision prohibiting the provisional disposition prohibiting the payment of the amount to be distributed to the mortgagee (=additional dividend)

[2] Whether the right to collateral security may be deemed a legitimate demand for distribution where the right to collateral security has submitted a claim statement to an auction court, but such right to collateral security was revoked as a fraudulent act (negative)

[1] In a case where the court of auction established a provisional disposition prohibiting a payment of the amount to be distributed to the mortgagee, and then cancelled the contract establishing the right to collateral security as a fraudulent act after depositing the dividend, if the payment of the deposited dividend is uncertain, it may be deemed that the distribution procedure has not yet been completed until the deposited dividend is paid to the depositor. Therefore, it cannot be readily concluded that the distribution procedure has been completed in a conclusive manner. Since the creditor's revocation does not affect the debtor's creditor's revocation of fraudulent act and the claim for restitution does not affect the legal relationship with the debtor and the beneficiary, it shall be treated as the debtor's responsible property in relation to the cancelled creditor and other creditors, and it shall not be directly acquired by the debtor. In light of the above, it is reasonable to further distribute the deposit to the other creditors who have received a distribution in the auction

[2] In case where the auction court executes additional dividends, the creditor entitled to the dividends shall be the creditor who has lawfully demanded the distribution in the auction procedure. However, even though the mortgagee submitted the claim statement to the auction court as the mortgagee, if the contract establishing the right to collateral security was revoked as a fraudulent act, it shall not be deemed a lawful demand

[1] Articles 406 and 407 of the Civil Act / [2] Articles 605 (see current Article 88 of the Civil Execution Act) and 728 (see current Article 268 of the Civil Execution Act) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002)

[1] Supreme Court Decision 2001Da37613 decided Oct. 12, 2001 (Gong2001Ha, 2460) / [2] Supreme Court Decision 97Da27794 decided Oct. 13, 1998

Plaintiff

The Korea Technology Finance Corporation (Attorney Lee Jae-soo, Counsel for defendant-appellant)

Busan High Court Decision 2001Na15316 delivered on May 17, 2002

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

The grounds of appeal are examined.

1. The facts duly admitted by the court below after compiling the evidence of the employment are as follows.

A. In the case of auction on real estate held by the non-party Dong name Industry Co., Ltd. (hereinafter referred to as the "Dong name Industry") and the non-party Dong name Co., Ltd. (hereinafter referred to as the "Dong name"), the auction court, on the date of distribution implemented on December 16, 199, distributed 267,117,048 won to the above Gyeongnam Bank, which is the first mortgagee, and distributed 63,953,711 won to the plaintiff who is the second mortgagee, who is the second mortgagee, and the defendant, who is the second mortgagee, did not make any statement of objection against the debtor and the creditor on the date of distribution.

B. However, prior to the preparation of the above distribution schedule, the defendant filed a provisional injunction against the payment of dividends to be paid to the plaintiff with the Busan District Court on the ground that the second mortgage contract between the Dong name industry and Dong name constitutes fraudulent act, and received a provisional injunction against payment from the above court. The auction court deposited the money to the plaintiff in accordance with the above provisional injunction order.

C. On October 19, 200, the defendant filed a lawsuit to revoke a fraudulent act against the plaintiff with Busan District Court, the above court revoked the above contract to establish a collateral security, and the plaintiff was sentenced to the same industry and the same name to transfer the dividend payment claim in the above distribution procedure and notify the Republic of Korea of the above transfer. The plaintiff appealed, but the above judgment was finalized after withdrawing the appeal on January 30, 2001.

D. On January 30, 2001, the Plaintiff notified the Republic of Korea of the transfer of the dividend payment claim. On February 1 and 2, 19 of the same year, the Plaintiff received a seizure and collection order as to the above dividend payment claim against the same industry and the Republic of Korea under the name of the same industry. The above order was served to the Republic of Korea, the third obligor at that time.

E. However, on March 27, 2001, the court of auction prepared a distribution schedule that distributes dividends to the Defendant, who is the creditor of provisional seizure, on the ground that the second-class mortgage contract for the Plaintiff as the creditor of the right to collateral security was revoked by the above fraudulent act revocation ruling, and that the second-class mortgage contract for the Plaintiff was additionally distributed to the Plaintiff on March 27, 2001. The court made a statement of objection against this.

2. The court below rejected all of the plaintiff's claims on the ground that the court of auction should not additionally distribute the above deposit money to the defendant, and the plaintiff who received a seizure and collection order regarding the deposit payment claim should have been paid, and even if additional dividends are paid for household affairs, the court below should have distributed the deposit in proportion to the claim amount of the plaintiff and the defendant.

3. In the instant case, in a case where the payment of the deposit is in an uncertain state, until the deposited dividend is paid to the deposited person, the distribution procedure may not be deemed to have yet been completed (see Supreme Court Decision 2001Da37613, Oct. 12, 2001). Thus, it cannot be readily concluded that the distribution procedure has been completed finally (see Supreme Court Decision 2001Da37613, Oct. 12, 2001). Since the creditor’s revocation effect does not affect the creditor’s legal relationship with the debtor and the beneficiary, the property restored to the debtor due to the revocation of fraudulent act by the creditor and the claim for restitution is treated as the debtor’s responsible property in relation to the cancelled creditor and other creditors, and it is not directly acquired by the debtor. In light of the above, it is reasonable that the deposit should be additionally distributed to the other creditors who have distributed the claim for payment of the deposit, and the seizure and collection order with respect to the claim

Therefore, the court below's decision to the same purport is just, and there is no error in the misapprehension of legal principles as to restitution due to the cancellation of fraudulent act. The plaintiff's ground of appeal on this point is without merit.

4. In the event that the auction court implements additional dividends, the creditor entitled to the dividends shall be the creditor who lawfully demanded the distribution in the auction procedure. However, even though the creditor, like the plaintiff, submitted the claim statement to the auction court as the case of the plaintiff, when the mortgage contract was revoked as a fraudulent act, it shall not be deemed a lawful demand for distribution.

In the same purport, the judgment of the court below which held that the deposit money shall not be distributed pro rata to the plaintiff and the defendant is just, and there is no error in the misapprehension of legal principles as to the dividend in the auction procedure. The plaintiff's ground of appeal as to this point is without merit.

5. 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 Park Jae- Jae (Presiding Justice)