In an auction procedure to exercise a security right, whether the amount of the secured claim stated in the account statement submitted by the mortgagee prior to the date of auction can be revised by expanding the amount of the secured claim which was submitted by the mortgagee prior to the date of auction (affirmative)

In an auction procedure to exercise a security right, a mortgagee who takes precedence over a creditor requesting auction may, as a matter of course, receive a distribution according to the order within the scope of the maximum debt amount stated on the registry, even if such mortgagee did not submit the claim statement, the distribution cannot be excluded from the distribution. In addition, even if the said mortgagee submitted the claim statement stating the amount of the secured debt prior to the auction date, he/she may submit again the claim statement that revises the amount of the secured debt until the distribution schedule is prepared. In such cases, the distribution court shall calculate the amount of the claim to be received by the said mortgagee within the scope of the maximum debt amount stated on the registry, based on the claim statement and evidence, etc. submitted by the said mortgagee at the time of preparation of

Articles 587(2) and 653 of the Civil Procedure Act

Supreme Court Decision 94Da57718 delivered on July 28, 1995 (Gong1995Ha, 2971), Supreme Court Decision 95Da22788 delivered on February 28, 1997 (Gong1997Sang, 886), Supreme Court Decision 96Da39479 delivered on July 10, 1998 (Gong198Ha, 2059)

Korean Bank, Inc.

Defendant

Seoul District Court Decision 97Na48806 delivered on April 15, 1998

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below affirmed the following facts: (a) as to the real estate of this case, the registration of creation of a mortgage of 39,00,000 won with the maximum debt amount as of December 22, 1992 as the right to collateral security; (b) as of February 17, 1996, the registration of establishment of a mortgage of 36,00,000 won with the maximum debt amount as of February 1, 1996 was completed; and (c) thereafter, at the request of the above non-party, the Seoul District Court Branch 945, 96, around 96, 1945, 30,00 won with the dividends of 30,00 won with the dividends of 40,00 won, 30,000 won with the total debt amount as of 40,32,427,67,00 won with the dividends of 30,000 won with the above dividends of 16,7,7,7, 967,27,06,20.

However, 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 naturally receive a distribution according to the order within the scope of the maximum debt amount stated on the registry, so even if such mortgagee did not submit a claim statement, the distribution cannot be excluded from the distribution. In addition, even if the mortgagee submitted a claim statement stating the amount of the secured debt prior to the auction date, he/she may re- submit a claim statement that revises the amount of the secured debt until the distribution schedule is prepared. In such cases, the distribution court shall calculate the amount of the secured debt to be distributed within the scope of the maximum debt amount stated on the registry, by means of the claim statement and evidence submitted by the said mortgagee at the time of preparation of the

Nevertheless, the court below held that the amount of dividends against the plaintiff, who takes precedence over the creditor applying for auction in this case, should be calculated on the basis of only the amount of secured claims entered in the account statement of claims submitted prior to the date of auction, which is erroneous in the misapprehension of legal principles as to the calculation of the amount of dividends by the mortgagee who takes precedence over the creditor applying for auction

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)