[1] In a case where a creditor entered an amount less than the actual amount of a claim in the auction procedure and submitted it to the auction court, whether the remaining amount of a creditor’s claim ceases to exist (negative)

[2] In a case where the dividend distributed at an auction to exercise a security right is insufficient to extinguish all of the secured claims held by the secured party, the method of satisfaction of the claim (=legal satisfaction of the claim)

[3] In case where a creditor did not receive a dividend from the amount of a claim that could have been received by submitting it to an auction court after entering an amount less than the actual amount of a claim in the claim statement in the auction procedure, whether the joint guarantor is exempted from liability for the amount that the joint guarantor should have appropriated for the debt that the joint guarantor guaranteed (affirmative), and in the above case, whether the joint guarantor bears the liability

[1] In the auction procedure, the remaining amount of the creditor's claim is not extinguished, since the creditor entered an amount less than the actual amount of claim in the claim statement and submitted it to the auction court.

[2] In a case where dividends distributed at an auction to exercise a security right fall short of extinguishing all of the secured claims held by the secured party, designation appropriation cannot be permitted under Article 476 of the Civil Code, and an agreement between the obligee and the obligor on appropriation of performance cannot be permitted under the agreement, and an appropriation of performance can not be permitted under the agreement, and an appropriation of performance should be made in accordance with the method of statutory appropriation of performance under Articles 477 and 479 of the Civil Code, which is the most equitable and equitable appropriation method uniformly. Such statutory appropriation of performance is made in the order of interest, damages for delay and the principal. Such payment of performance shall be made in the order of interest, damages for delay and the principal. The principal shall be made in order according to the arrival of the due date and arrival date of the due date, and the difference between the interest rate and the principal. However, if there is no distinction from the due date or the interest for repayment,

[3] In case where a creditor did not receive a distribution of the amount of the claim that could have been received by submitting it to the auction court after entering an amount less than the actual amount of the claim in the auction procedure, if the creditor prepared the claim statement properly, it is possible to receive the distribution if the creditor prepared the claim statement, but it is reasonable to by analogy Article 485 of the Civil Code on Loss and Reduction of Security of the creditor with respect to the amount that the joint and several surety should have been appropriated for the obligation that the joint and several surety jointly and severally guaranteed, it is reasonable to allow the joint and several surety to exempt the creditor from liability. In such a case, if the joint and several surety has met the amount that the creditor would have received if he prepared the claim statement properly, by means of legal appropriation, for each claim of the creditor,

[1] Article 460 of the Civil Code, Article 653 of the Civil Procedure Act / [2] Articles 476, 477, and 479 of the Civil Code / [3] Article 485 of the Civil Code, Article 653 of the Civil Procedure Act

[2] Supreme Court Decision 96Da52649 delivered on July 25, 1997 (Gong1997Ha, 2676) Supreme Court Decision 98Da6763 delivered on July 10, 1998 (Gong1998Ha, 2084 delivered on August 24, 199) 9Da2281, 2298 delivered on August 24, 199 (Gong199Ha, 1945)

Plaintiff

Cho Heung Bank (Attorney Yu Ho-soo, Counsel for the plaintiff-appellant)

Seoul District Court Decision 2000Na20259 Delivered on August 31, 2000

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

We examine the first ground for appeal.

The court below rejected the defendant's claim that the non-party 1 and the non-party 2 were 60,000 won and 186 won and 184 won and 20,000 won and 18,000 won and 20,000 won and 36,000 won and 186,000 won and 16,00 won and 47,000 won and 186,00 won and 17,000 won and 5,000 won and 186,00 won and 186,00 won and 5,000 won and 186,00 won and 20,000 won and 16,000 won and 186,00 won and 186,00 won and 2,000 won and 197,00 won and 2,00 won and 2,00 won and 197,00 won and interest on the above real property.

However, in the auction procedure, where the creditor submitted an amount less than the actual amount of the claim to the auction court after entering it in the claim statement, and the remaining amount of the creditor's claim is not extinguished, on the other hand, in case where the dividend dividend distributed at the auction to exercise the security right is insufficient to extinguish all of the secured claims owned by the secured party, the designated appropriation of performance under Article 476 of the Civil Act cannot be permitted, and the satisfaction of performance can not be permitted on the ground that there is an agreement between the creditor and the debtor on the satisfaction of performance, and it shall be appropriated in accordance with the method of statutory appropriation of performance under Articles 477 and 479 of the Civil Act, which is the most equitable method for uniform appropriation. Such statutory appropriation of performance shall be made in the order of interest, delay damages and the original. It shall be made in order in accordance with the interest rate and the different interest of the principal, such as at the time when the due date arrives, and if there is no difference in the period of performance or the amount of repayment interest, it shall be distributed in proportion to each original obligation (see, Supreme Court Decision 96Da657565Da19797,5,57,57.7.7965,57.7.

Therefore, the amount distributed by the Defendant from the auction court shall be appropriated for all the amount of the actual secured debt guaranteed by the Defendant with the right to collateral security established on the real estate in this case. The order and method of appropriation of debt shall be appropriated in order of each expense, interest, and principal in accordance with the method of appropriation of debt under Articles 477 and 479 of the Civil Act, and the principal shall be divided in proportion to the principal debt in the case where there is no difference in the profit of repayment or any difference in the principal. However, if the Defendant prepared the claim statement properly, it may be divided in proportion to the principal debt in proportion to the amount of the principal debt. However, with respect to the amount that the Plaintiff should have been appropriated for the debt of the deed of this case which the Plaintiff jointly and severally and severally guaranteed among the amount that was not paid by the Defendant, it is reasonable to interpret Article 485 of the Civil Act on the loss or reduction of creditor's security, and eventually, the amount of debt owed by the Plaintiff against the Defendant as a joint and several surety is appropriated for each loan of the Defendant.

Nevertheless, the court below judged that the defendant's appropriation was made in accordance with the statement of credit appropriation, which is erroneous in the misapprehension of legal principles as to the appropriation of credit in the auction procedure, which affected the conclusion of the judgment.

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-sik (Presiding Justice)