2018 Gohap 101577 of the objection to distribution

Korea Technology Finance Corporation

Law Firm Seowon, Attorney Seo-won

Attorney Shin Shin-soo et al.

A Limited Liability Company

Attorney Lee Jong-chul et al., Counsel for defendant-appellee

November 15, 2019

2020,10

1. Of the distribution schedule prepared by the said court on May 16, 2018 with respect to the auction of the real estate B located in the Daejeon District Court Branch B, the amount of dividends of KRW 1,357,292,985 against the defendant shall be corrected to KRW 1,125,122,029, KRW 202,035,144, KRW 187,351,444, and KRW 246,854,656, respectively.

2. The plaintiff's remaining claims are dismissed.

3. One-fifth of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Of the distribution schedule prepared by the above court on May 16, 2018 with respect to the Daejeon District Court B, the amount of dividends of KRW 1,357,292,985 against the defendant shall be corrected to KRW 1,070,989,932, the amount of dividends of KRW 202,035,144 to KRW 177,331,728, and the amount of dividends against the plaintiff to KRW 31,06,469, respectively.

1. Basic facts

A. Each guarantee agreement and guarantee agreement of the instant case

1) Conclusion of each of the instant guarantee contracts

The plaintiff guaranteed each of the following loan obligations against D Co., Ltd. (hereinafter referred to as "D"), as follows (hereinafter referred to as "each of the guarantee agreements of this case", and each of the separate contracts set forth as the sequence), issued each of the guarantee bonds with a guarantee rate of 90% in the future of D major branch (hereinafter referred to as "each of the guarantee certificates of this case") to the non-party company as security (hereinafter referred to as "the loans of this case"), and D loaned each of the guarantee certificates of this case to the non-party company as security (hereinafter referred to as "the loans of this case").

A person shall be appointed.

2) The letter of guarantee for loans Nos. 2 and 4 of the Guarantee Agreement contains a guarantee agreement with the following contents:

(A) a second loan guarantee agreement;

1. To deal with loans under this letter after the establishment of the second right to collateral security after the establishment of the second right to collateral security with respect to each real estate listed in the separate sheet (each real estate listed in the separate sheet shall be referred to as "each real estate of this case", but each individual real estate shall be specified in the sequence 1).2. The factory building of this case (each real estate of this case 4, 5, hereinafter referred to as "the building of this case") shall be secured by the first right to collateral and shall be terminated by not less than 70% of the guaranteed amount.4.

(B) a guarantee agreement for a loan 4;

1. To deal with loans under the principal guarantee letter after the establishment of the third priority mortgage on each real estate listed in the separate list: 2. to acquire and manage the fixed date transfer on each occasion of the introduction of part of the relevant facility; to acquire and acquire the whole of the relevant facility by establishing the second priority mortgage above the amount of the loan by the guarantee unit under the Factory and Mining Foundation Mortgage Act (a factory building), and to immediately terminate at least 50% of the amount guaranteed; (b) The (factory) collateral mortgage acquired under the terms and conditions of this guarantee shall be utilized only as a security for the loan of this case; (c) The mechanical name of the relevant facility: Water Pollution Prevention Facility (2) Supplier: the representative director of the Bank of Credit Resolution (F).

3) The terms and conditions of each of the instant guarantees are as follows.

§ 2. 6. The term "guarantee Loan" means a loan which is implemented in conformity with the terms and conditions of credit guarantee in the electronic guarantee certificate and in which a credit guarantee relationship has been established, and is part of the share of the Plaintiff's responsibility by "The rate of guarantee". The amount of loan is part of the obligee's responsibility. If the amount of loan exceeds the amount of loan, the excess 9. The term "Direct Loan Security" means a security right acquired by the security right or the special contract with only the amount of the loan as the secured claim.The amount of the repayment of the loan collected under Article 10. 10. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. . .. .. .. . . .. .. . . .. . . .. . . . . . ... . . . .

B. D, such as the establishment of D’s right to collateral security on December 9, 2013, registered the establishment of the right to collateral security of KRW 464,40,00 with respect to each of the instant real estates on December 1 through 3, 2013; ② the registration of the establishment of the right to collateral security of KRW 1,656,00,000 with respect to each of the instant real estates on June 30, 2014, according to the special agreement for the second loan security of KRW 1,65,000 with respect to each of the instant real estates on June 30, 2014; ③ the registration of the establishment of the right to collateral security of KRW 360,00 with respect to each of the instant real estates on June 30, 2014 (applicable to the relevant facility under the special agreement for the fourth loan security; hereinafter referred to as “the instant machinery”). The registration of the establishment of the right to collateral security of each of the instant real estates on a successive order.

C. On October 28, 2016, the Plaintiff subrogated for KRW 1,44,520,385 in total to D on October 28, 2016 (i.e., KRW 412,126,561 + KRW 349,702,831 in total + KRW 349,702,831 in total + KRW 446,097,00 in total and KRW 136,593,993 in subrogation).

2) On the same day, the Plaintiff entered into each of the instant collective security agreements with D and the instant (2, and 3) with respect to the dividend of the right to collateral security, and set the following terms.

Article 2 (Priority Collection by Creditor) (2) of this case 2, 3 The amount of each distribution by each collateral security shall be appropriated preferentially for the claims set forth in the following subparagraphs, and each remaining amount shall be divided divided according to the ratio of responsibility of D and Plaintiff for the loans 2, 4 and 4 as of the date of distribution. ① If part of D is terminated by the special agreement to guarantee obligation 2 and 4 out of the remaining claims of D, the difference between overdue interests and agreement for each plaintiff's liability arising until the date of subrogation by the plaintiff 3.

3) On November 9, 2016, the Plaintiff completed the registration of partial transfer of the right to collateral security, with the content of transferring KRW 349,702,831, out of the maximum debt amount of the instant right to collateral security, on the ground of the repayment of the incidental claim established by D, and the registration of partial transfer of the right to collateral security transferred KRW 136,593,93, out of the maximum debt amount of the instant right to collateral security.

4) On May 16, 2017, the Plaintiff applied for a payment order seeking the payment of the subrogated amount, etc. to the non-party company and its representative director, and received the payment order issued by Daejeon District Court 2017 tea, 11358.

D. The auction procedure of this case and the acquisition of the defendant's collateral security claims

1) On November 14, 2016, D, based on each of the instant collective security rights, was rendered a ruling to commence the auction of the instant real estate on November 14, 2016 (hereinafter “instant auction procedure”).

d. d.

2) On December 28, 2016, the Defendant received from D each of the instant loans of KRW 1,761,482,768 from D during the instant auction procedure, and notified and publicly notified the assignment of claims at around that time.

3) In the instant auction procedure, the appraisal was conducted at KRW 5,022,968,650 on the instant facilities, including the instant real estate and the instant machines, and among them, the appraisal value of the instant building is KRW 2,305,742,650, and the appraisal value of the instant machinery is KRW 312,40,000. 4) The Defendant, as a creditor who filed an application or a successor to a mortgagee, submitted a statement of credit statement by May 16, 2018, stating the details of each of the instant principal and interest of the instant loans as the sum of the bonds included in the instant auction procedure as at April 19, 2018, the Defendant submitted the statement of credit statement by May 16, 2018. Among them, the principal and interest of the second and fourth loans are KRW 1,270,760,295, and the interest amount is KRW 8,498,465,50,00.

Total amount of loan 1,083,714,70 won = 929,82,90 won + interest 153,891,802 won + 63,730,00 】 10.73% ¡¿ 563 days/365 days/365 days/92,900 x 10.73% x 10.63% x 563% x 10.73% 】 563% x 565 days/ 401 x 506 days x 506% x 506% x 506 days x 200,00,00 x 10.73,365 days/365 x x 605% x 605 days x 605% x 636% x 506% x 605 days x 3636% x 105 days x x 506 days 】 3606 days.

5) On April 3, 2018, the Plaintiff submitted a claim statement by May 16, 2018, which included the sum of the claims, 1,693,303,569 won in the instant auction procedure, based on the right to collateral security partially transferred from D.

6) In the instant auction procedure, each of the instant real estate and the instant machines and equipment were collectively sold. The amount to be actually distributed after deducting the execution cost from the total sale price was KRW 2,603,263,514, and on May 16, 2018, Seoan-gu, Seoan-si, the pertinent tax payer, was 5,327,410 won in the first order, and the Defendant, the second order, with the second order, 464,40,000 won in the instant collective security, and 1,357,292,985 won in the instant collective security and 4th order in the third order, and 202,035,144 won in the instant collective security (hereinafter referred to as the “instant distribution schedule”).

7) The Plaintiff appeared on the date of distribution, and the Defendant raised an objection against the amount of distribution set forth in the instant case ②, 3, and 4, which was received based on the right to collateral security, and filed the instant lawsuit on May 21, 2018, which was seven days thereafter.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, 8, 9 (if there is a tentative number, including branch numbers, hereinafter the same shall apply), Eul's statement 1 through 5, the purport of the whole pleadings

2. Summary of the parties' arguments

A. According to the instant guarantee agreement, the Plaintiff and the Defendant decided to distribute dividends in proportion to the ratio of responsibility between the Plaintiff and the Defendant, as follows: (a) the instant case ②, and (c) each collateral security right covers only the liabilities with interest on loans 2 and 4; and (d) the Plaintiff and the Defendant, pursuant to Article 2 of the instant contract for partial transfer of collateral security right (hereinafter referred to as “actual dividends”) less the Defendant’s claims with respect to the principal and interest of loans secured by each of the instant collateral security rights (hereinafter referred to as “priority dividends”) from the amount actually received dividends; and (e) the amount is as follows. However, the Defendant submitted a claim statement to receive the entire dividends and received dividends. The Defendant was paid the entire dividends, but the Defendant did not specify that the portion arising from the loans 2 and 4 was the first dividends.

1) The Defendant is entitled to preferential dividends of KRW 1,039,178,481 (= principal amounting to KRW 891,61,611,00 + interest 147,501 + interest 14,504 (= KRW 1,357,292,985) out of the amount remaining 318,114,504 (= KRW 1,357,292,985 KRW 1,039,178,481), whichever is 90% of the actual dividends based on the right to collateral security. The Plaintiff shall be entitled to dividends of KRW 286,303,053,053, out of the amount remaining.

Total amount of 1,039,178,481 = Principal amount of 891,61,00 won + Interest of 147,567,481 won + 63,730,00 won ¡¿ 10.73% ¡¿ 563 days/365 days = 10,547,734 (turbation below won; hereinafter the same shall apply) ¡¿ (156,092,900 won stated in the report on claims x 38,21,900 won x 10.73% 】 563 days/365 days x 19,510,000 won x 200,00,000, 3635 days x 365 days x 10,365 days x 305 days x 105 days x 363/365 days x 305 days x 105 days x 306 days x 305 days x 106 days 】 】 30606 days 】 】 3605 days 】 】 306 days 】 305 days 】 】 305 days ;

2) The Defendant is entitled to a preferential distribution of only KRW 174,586,903 (i.e., principal of and interest on loans 150,00,000 + interest KRW 24,586,903) out of KRW 202,035,144 based on the right to collateral security (i.e., the amount of principal and interest on loans 150,00,000 + interest KRW 24,586,903). The Plaintiff is entitled to a preferential distribution of KRW 27,48,241 (i.e., 202,035, 144 - 174,586,903) out of the remaining amount.

Total amount of KRW 174,586,903 = Principal of KRW 150,00,000 + Interest of KRW 24,586,90 + ( KRW 55,00,000 stated in the claims registration statement by the Defendant) ¡¿ 11.28% ¡¿ 11.28% ¡¿ 563 days/365 days/365 + 8,69,506 Won* ( KRW 110,00,000 stated in the claims registration statement by the Defendant) x 10.30% x 563 days/365 days/365 days = 15,87,397 won on credit portion by the Plaintiff subrogated by the Plaintiff) x 10.30% x 563 days/365 days = 15,87,397 won

B. Defendant

1) The Defendant is the assignee of the claim of D and is the mortgagee of each real estate of this case. Pursuant to Article 483(1) of the Civil Act, the Defendant, a creditor, has the right to receive dividends in preference to the Plaintiff, a part of subrogation.

2) Since each of the instant guarantees is aimed at securing the security interest in the instant building and machinery, the repayment of the instant claims for loans Nos. 2 and 4 may be limited to the instant building and machinery dividends.

3) When calculating the remaining amount distributed to the Plaintiff and the Defendant, ① pre-purchase interest falls under the amount of a preferential loan, and should be excluded, and credit portion shall not be deducted from the loan principal, which is the preferential dividend between the Plaintiff and the Defendant. ① The difference between overdue interest and agreed interest under Article 2(3) of the Act on the Transfer of Collateral Security between the Plaintiff and D, shall also be excluded as the Defendant is entitled to preferential dividends.

3. Determination

A. Determination on the dividend order

1) In a case where a person who has a legitimate interest in repayment makes a payment by subrogation for a part of a claim on behalf of a debtor, the person who makes the payment by subrogation acquires existing claims and rights to collateral held by the obligee within the extent of the value of the performance by which he/she has made the payment by subrogation, and thus, in a case where a creditor has a mortgage over real estate, the obligee is obligated to partially transfer the mortgage to the person who makes the payment by subrogation, but even in this case, the obligee has the right to preferential payment as to the part of the subrogation (see, e.g., Supreme Court Decision 2001Da2426, Jun. 25, 2004): Provided, That in a case where a separate agreement is made between a part of the subrogation and the obligee as to the order of performance by subrogation, the order of performance is determined in accordance

2) According to each of the above evidence, the Plaintiff and D, a partial subrogation, agreed to receive the remaining amount of dividends based on the right to collateral security in proportion to the ratio of liability sharing, the Plaintiff and D, a creditor, agree to receive the dividends in proportion to the ratio of liability sharing, the ratio of liability sharing between the Plaintiff and D and D is 90:10. In the auction procedure of this case, the facts that dividends based on each of the rights to collateral security (B and 3 are distributed to the Defendant, a successor to D.) of this case can be acknowledged. The remaining amount of actual dividends should be distributed pro rata to the Defendant

(b)the portion to be appropriated for repayment of loans 2 and 4 out of the distributable amount;

1) In full view of the contents of each guarantee letter of this case’s guarantee agreement and the contents of the instant guarantee agreement, the amount collected following the exercise of the security right to directly collateral for the guaranteed loan, which was acquired by the pertinent loan, shall be preferentially appropriated for the repayment of the pertinent loan. Of the recovered amount after the occurrence of the guarantee accident, the portion excluding the amount recovered from the exercise of the security right to the pertinent facilities shall be appropriated in the order of repayment of the relevant guaranteed loan, other than the relevant secured loan, claims other than the relevant secured loan, and the guaranteed loan claims (see, e.g., Supreme Court Decision 2016Da205342, July 14, 2016).

2) According to the above evidence, the amount of actual dividends that the Defendant could have actually received in the auction procedure of this case was 2,603,263,514 of the amount to be actually distributed after deducting the execution cost from the total sale price, which was 2,597,936,104 won, excluding the amount of KRW 5,327,410, which was distributed in the first order to the Seo-gu, Seocheon-gu, Incheon Metropolitan City, a person entitled to issuance of the pertinent tax (hereinafter “instant distributable amount”), among which the amount equivalent to the sales price of the building and machinery of this case calculated according to the appraisal ratio of the auction procedure of this case is 1,192,56,134 won, 161,576,808 won, respectively. Accordingly, the amount of money equivalent to the sales price of the building of this case and machinery of this case calculated according to the appraisal ratio of the auction procedure of this case shall be appropriated first to the repayment of the loans of this case.

3) Meanwhile, from the amount distributable after the occurrence of the guaranteed accident, KRW 1,243,803,162, excluding the proceeds from the sale of the instant building and machinery (=2,597,936,104 won - KRW 1,192,56,56,134 - 161,576,808 won - 161,576,808) out of the total amount of the instant credit in the account statement submitted by the Defendant, the remainder of the amount 868,509,859 [2,190,252,783 won - the total amount of the Defendant’s bonds 2,40,760,295 won - KRW 1,270,298,465 won (interest prior to purchase 88,498,465), 2,4636,3757,297,3637,57,273636

4) Therefore, the portion appropriated for repayment of loans 2 and 4 out of the distributable amount of the instant dividends shall be KRW 1,192,56,135 and KRW 161,57,808 and KRW 375,293,303, which is remaining after being appropriated for repayment of the remainder of the instant claims as above. The above KRW 375,293,303 and KRW 1,357,292,985 and the sales price of the instant building 1,192,56,135, which is the difference between KRW 164,736,850 and KRW 400, KRW 202,035 and KRW 161,576,144 and the sales price of the instant machinery of this case and KRW 375,585,300, KRW 295,305, 296, 305, 205, 305, 2964, 305, 164, 14.

5) The defendant's assertion that the repayment of loans 2 and 4 can be limited to the dividends on the instant building and machinery cannot be accepted.

(c) Scope of distributed dividends;

(i)the calculation of preferential dividends;

(1) Interest accrued before purchase

As seen earlier, interest prior to the purchase of the second loan is KRW 43,365,07 and interest prior to the purchase of the fourth loan is KRW 7,617,622.

The plaintiff's assertion that the Defendant's interest accrued from loans 2 and 4 are not specified among the interest accrued prior to purchase entered in the statement of claim payment, and thus, the Defendant's preferential dividends should be excluded from dividends is without merit.

(1) Principal of loan and interest accrued after purchase

According to the above evidence, the sum of the principal of the second loan and interest accrued after the purchase is KRW 1,039,178,481, and the sum of the principal of the fourth loan and interest accrued after the purchase is KRW 174,586,903.

The defendant argues to the effect that it is unfair for the plaintiff to calculate the principal and interest excluding the credit portion out of the principal of the second and fourth loans, among the defendant's statement of claim settlement, the credit portion corresponds to the amount of 38,211,90 won of the principal of the second loan, and the amount of 15,000,000 won of the principal of the fourth loan by subrogation. Since such portion has ceased to have been repaid, the defendant's argument

2. Difference between overdue interest and agreed interest

According to the above evidence, the plaintiff and D pursuant to Article 2 (3) of the Act on the Transfer of Mortgage

(2) The instant case: (3) The agreement on the overdue interest of the second and fourth loans arising from each right to collateral security and the agreed interest rate for the portion of the Plaintiff’s liability arising from each right to collateral security until the date of the Plaintiff’s subrogation is reached; and (4) the overdue interest of the second loans and the agreed interest rate are 16,781,768 won; and (4) the difference between overdue interest of the fourth loans and the agreed interest rate is 3,515,396, etc.; and (5) the Defendant may receive a preferential dividend of each

The Plaintiff asserts to the effect that the instant distribution schedule was prepared, except for the difference between the above overdue interest and the agreed interest, on the account statement submitted by the Defendant during the instant auction procedure, and that it cannot be asserted in a lawsuit of demurrer against the distribution. However, even if the mortgagee of the right to collateral security registered prior to the registration of the commencement of auction in the real estate auction procedure did not demand a distribution, the mortgagee may receive a distribution according to the order of priority. Even if the mortgagee submitted a right report and the secured claim stated in the report does not exist, the mortgagee may assert that other claims exist that can be the secured claim in the lawsuit of demurrer against the distribution filed by other creditors on the ground that there is no right claim as above, and if it has been proved that other claims exist, the distribution to the mortgagee is legitimate (see, e.g., Supreme Court Decisions 98Da7179, Jul. 28, 1998; 201Da3696, Nov. 26, 2002). 2012.

Therefore, even if the defendant submitted the claim statement without including the difference between the above overdue interest and the agreed interest at the auction procedure of this case, the defendant can assert that the plaintiff has the right to receive dividends equivalent to the difference between the above overdue interest and the agreed interest secured by each collective security right. Thus, the plaintiff's above assertion is not accepted.

2) Balance and reasonable dividends to the plaintiff

A) ② The remaining amount of dividends based on the right to collateral security (2) in this case where the Plaintiff may receive a divided distribution among the dividends based on the right to collateral security with the Defendant. The Defendant’s actual dividends are 257,967,729 won (=1,357,292,985 won - KRW 43,365,07 of the Act 43,039,178,481 - KRW 16,781,768 won of the Act - The Plaintiff has the right to receive a dividend of KRW 232,170,956, which is equivalent to 90% of the amount of 90% of the Plaintiff’s actual dividends.

B) ③ The remaining amount of the dividends based on the instant mortgage, which the Plaintiff may receive divided distribution with the Defendant, out of the dividends based on the instant mortgage, is the Defendant’s actual dividends, 16,315,223 won (i.e., the amount calculated by subtracting the difference between the interest prior to purchase of the 4th loan, the interest accrued after purchase of the 4th loan principal and the interest, overdue interest, and the agreed interest (i.e., the amount of 202,035,144 won) from the Defendant’s actual dividends (i.e., the amount of 7,617,622 won - the amount of 74,586,903 - 3,515,396 won - the amount of 90% of the Plaintiff’s active dividends.

D. Sub-determination

Therefore, among the instant distribution schedule prepared at the instant auction procedure, the amount of dividends of KRW 1,357,292,985 based on the right to collateral security against the Defendant is KRW 1,125,122,029 (= KRW 1,357,292,985 - 232,170,956), and the amount of dividends of KRW 202,035,144 based on the right to collateral security of the instant case is KRW 187,351,444 (= KRW 202,035,144 - 14,683,70), and the amount of dividends against the Plaintiff should be corrected as KRW 246,854,656 (=232,170,956 won + 14,683,700).

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge and the lowest judge;

Judges fixed-age

Judges Gin Young-young

1) Division, merger, and division of “YYYYYYYYYYYYYYYYYY 2,046 m, H field 684m, I field 1,291m, J field 65m, J field 665m, K prior 364m, L prior to L 324m.”

After the change of land category, real estate stated in the attached list 1 to 3 was made.

(2) (2,305,742,650 won: the total appraised value of the building: 5,022,968,650 won, X-paid amount of KRW 2,597,936,104); and

The appraised value of KRW 312,400: Each account of the total appraised value of KRW 5,022,968,650, X 2,597,936,104).

of the defendant's preparatory brief dated October 25, 2019, approved as above, in accordance with three pages of the defendant's preparatory brief dated October 25, 2019.

(c)

3) In the third page of the preparatory document dated October 25, 2019, the Defendant clarified interest prior to the purchase of each of the instant loans, and the said details by the Plaintiff.

There was no separate dispute on this issue.