DK Newcom Co., Ltd. (Attorney Kim Young-young, Counsel for the defendant-appellant)

Busan Bank (Law Firm Democratic, Attorneys White-soo et al., Counsel for the defendant-appellant)

March 15, 2012

1. The defendant shall pay to the plaintiff 432,057,260 won with 5% interest per annum from July 20, 201 to March 29, 2012, and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 432,057,260 won with 5% interest per annum from June 20, 201 to the service date of a copy of the complaint of this case, and 25% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. On June 9, 2005, the Defendant concluded a contract to establish a collateral security agreement of KRW 7,150,000,000 with respect to the real estate listed in the [Attachment No. 1 to 3 List (except No. 24 or 29 out of the real estate listed in the [Attachment No. 3] owned by No. 1 to 3, 2005, and completed the registration of the establishment of a collateral security agreement on June 13, 2005 (hereinafter “instant collateral security”).

B. On June 10, 2005, Masco Co., Ltd. (hereinafter “Masco”) concluded a mortgage contract with a maximum debt amount of 30 billion won with respect to real estate listed in attached Forms 1 through 3 as a security for NAsethyl and commercial transactions, and completed the establishment of a mortgage on June 13, 2005.

C. The registration of the transfer of ownership in its name is completed on December 29, 2006 with respect to the real estate listed in the [Attachment 1] List on December 29, 2006 on the ground of sale and purchase as of December 28, 2006.

D. On September 7, 2007, when the Daegu District Court applied for the commencement of rehabilitation proceedings as Daegu District Court Decision 2007Kahap8, the above court approved the rehabilitation plan on April 14, 2008 (hereinafter “the rehabilitation plan in this case”) stating that “The transfer price of the business related to surface treatment lectures and remanufacture shall be fairly repaid to the Plaintiff in the amount of KRW 59.2 billion, and the transfer price of the business shall be fairly repaid to the creditors in the amount of KRW 59.2 billion. In the case of rehabilitation secured creditors, the amount equivalent to the liquidation value of the collateral shall be preferentially apportioned to the creditors in the amount exceeding the liquidation value of the collateral, and shall be apportioned by the amount calculated by multiplying the liquidation value of the collateral by 56% in the case of rehabilitation secured creditors, and if there is any remaining amount after the preferential use and reservation amount, repayment shall be made in the remaining distribution method.”

E. Pursuant to the instant rehabilitation plan, real estate stated in the separate sheet No. 1 was assessed to KRW 4,292,603,00. The Defendant reported the claim of KRW 11,429,353,426 and received reimbursement of KRW 4,084,60,091 as the first mortgagee of the real estate listed in the separate sheet No. 1, and KRW 871,202,297 as the general creditor.

Of the values of real estate listed in the attached Table 1 list, the remaining 208,02,90 won (=292,603,600 won - the amount received 4,084,600,091 won - the amount received 7,136,749,596 won of general bond - the amount of 871,202,297 won was paid in proportion to dividends among other creditors in proportion to the amount of the remaining transfer of business. Such amount is 11.866% (= 871,202,297 won/7,74,744,752,500 x 100) of the amount of the secured claim, and the amount of the secured claim is 24,672,389 won (=208,002,909 x 156%6% of the amount received) of the general bond 7,136,741,297,2940,204 of this case.

F. In the instant rehabilitation case, Spanco reported the claim amounting to KRW 18,679,329,90,00 in the instant rehabilitation case, and received KRW 4,377,508,894 as the first pledgee of the shares of the Chinese Sodong Metal Metal Co., Ltd in accordance with the instant rehabilitation plan, and received KRW 1,88,169,307 as the ordinary creditor.

G. On April 30, 2008, the Plaintiff completed the registration of ownership transfer under the name of the Plaintiff on the grounds of business takeover as to the real estate listed in the separate sheet No. 1 attached hereto, and on May 26, 2008, the registration of ownership transfer was cancelled on May 16, 2008.

H. On June 5, 2008, the Daegu District Court concluded the rehabilitation procedure for ethyl, and on July 2, 2008, rendered a decision of adjudication of bankruptcy (the same court 2008Hahap8Hahap8) upon the application of ethyl (the same court).

I. On June 15, 2010, the Plaintiff completed the supplementary registration of the right to collateral security transfer on the ground of the transfer of the right to collateral security on May 29, 2008, with regard to the registration of the establishment of the right to collateral security transfer on the real estate listed in [Attachment 2 and 3] List.

(j) On June 20, 2011, the Korea Asset Management Corporation carried out a public auction due to default of taxes on real estate listed in the attached Table 2 (hereinafter “instant public auction procedure”). The Defendant reported the claim amounting to KRW 8,791,896,319 in the said public auction procedure as the first-class mortgagee, and received dividends of KRW 3,472,784,780 on July 20, 201. The Plaintiff reported the claim amounting to KRW 12,398,71,050 as the second-class mortgagee, but did not receive any dividends at all.

[Ground of recognition] Unsatisfy, Gap evidence 1-5, Gap evidence 2-1 through 7, Gap evidence 3-1-48, Gap evidence 5-1 through 3, Gap evidence 5-6, fact inquiry into the Korea Asset Management Corporation, the purport of the whole pleadings as a result of the fact inquiry into the Korea Asset Management Corporation

2. The parties' assertion

A. The plaintiff's assertion

Although the Defendant, based on the instant right to collateral security, received dividends of KRW 7,582,057,260 exceeding the maximum debt amount of KRW 7,100,000,000,000 (i.e., KRW 4,109,272,480 in rehabilitation procedures + KRW 3,472,784,780 in public sale procedures). As a result, the Defendant is obligated to pay the Plaintiff damages equivalent to the amount of KRW 432,057,260 in difference between KRW 7,582,057,260 and KRW 7,150,000 in compensation for damages incurred to the Plaintiff by preventing the Plaintiff from receiving dividends of KRW 432,057,260 in compensation for losses without any legal cause.

B. Defendant’s assertion

If a joint mortgagee receives a distribution in the realization procedure of a jointly mortgaged real estate, he/she may receive a distribution only within the scope of the maximum debt amount, but if the debtor makes a voluntary repayment, the creditor may receive a distribution concerning the whole remainder of the claims after he/she appropriated the repayment within the scope of the maximum debt amount. As such, the Defendant’s distribution under the rehabilitation procedure of this case is the same as the case where the debtor makes a voluntary repayment. Accordingly, it is justifiable that

3. Determination

Article 368(1) of the Civil Act provides that "where a mortgage has been created on several immovables as security for the same claim, if the proceeds of the auction are to be distributed at the same time, the apportionment of the claim shall be determined in proportion to the proceeds of the auction of each immovable," and Paragraph (2) of the same Article provides that "if the proceeds of the auction of part of the immovables mentioned in the preceding paragraph are to be distributed first, the mortgagee may obtain payment of the whole proceeds of the auction. In this case, the mortgagee of the auction of such immovables may exercise the right of preference on behalf of the mortgagee to the extent of the amount that he can receive payment from other immovables in accordance with the provisions of the preceding paragraph." In this case, where several immovables which are the object of the joint mortgage are sold at the same time, the mortgagee shall be entitled to payment from any other immovable regardless of the amount received from the auction of each immovable, but since Article 368(1) of the Civil Act provides that the owner of each immovable, the next mortgagee or any other creditor shall have a significant interest in the auction of such immovables at the same time as the so-called joint mortgagee's distribution.

In the case of this case, the following facts are acknowledged by the evidence mentioned above, namely, the market price of the real estate listed in the annexed Table 1 in the rehabilitation procedure of this case, and the defendant, who is the first secured right, has preferentially distributed the amount equivalent to the market price of the above real estate out of the amount of the amount of the claim reported by the defendant, who is the first secured right, based on the defendant's claim of the right. The rehabilitation plan of this case provides that when the debtor pays the debt corresponding to the rehabilitation security right as the transfer price for business transfer, the entire security right should be extinguished, and the rehabilitation procedure of this case is cancelled after the repayment is completed, and the rehabilitation procedure of this case is forced by the bankruptcy court to exclude the debtor's intent and realize the creditor's rights, and it is different from the debtor's voluntary repayment. Thus, the defendant's preferential repayment from the realization amount of the real estate listed in the annexed Table 1 list in the rehabilitation procedure of this case shall be deemed to be the exercise of the right to preferential reimbursement within the scope of the payment of this case.

Ultimately, the Defendant cannot receive a preferential payment once again in the auction procedure of the secured real estate that takes place after the amount preferentially repaid in the rehabilitation procedure of this case. However, the Defendant again received 3,472,784,780 won from the public auction procedure of this case. Of these, 432,057,260 won [=7,582,057,260 won + [4,109,270 won in the rehabilitation procedure + 3,472,784,780 won in the public auction procedure + 3,15,780 million won in the public auction procedure] exceeding the maximum amount of debt. Since the Plaintiff, as a creditor immediately after the Defendant’s imposition of the damages for delay, the Defendant did not receive an amount equivalent to the excess amount of dividends from the above public auction procedure of this case to the 205,000 won in the public auction procedure of this case, the Defendant did not accept the amount of damages for delay which the Plaintiff had received as unjust enrichment from the 202017.27,2016.27.

4. Conclusion

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

[Attachment]

Judges Go Young-gu (Presiding Judge)