The requirement to be distributed by the mortgagee in proportion to the proportional distribution in the same order as that of the provisional seizure creditor with respect to a claim exceeding the maximum debt amount.

In order to distribute dividends in proportion to the same order of distribution among creditors holding other provisional seizure with respect to a claim that does not have the effect of preferential repayment as part exceeding the maximum debt amount of the right to collateral, the submission of a request for auction based on the right to collateral security or a statement of claim may not be sufficient. With respect to a claim that exceeds the maximum debt amount, a legitimate demand for distribution under Articles 728 and 605 of the Civil Procedure Act or other claims that may be distributed shall meet the necessary requirements.

Articles 605 and 728 of the Civil Procedure Act

(Attorney Jeong-nam, Counsel for defendant-appellee)

Defendant

Seoul High Court Decision 97Na1022 delivered on June 3, 1997

The part of the lower judgment against the Plaintiff is reversed and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. The summary of the facts of the instant case is summarized as follows. The Defendant was established as of September 9, 191 with respect to the instant real estate owned by the Nonparty and applied for commencement of an auction with the claim amounting to KRW 300,000,000 against the said Nonparty based on the joint collateral security prior to November 29, 195, and the claim amounting to KRW 300,000 against the said Nonparty based on the joint collateral security prior to November 29, 1995, and the decision of commencement of auction was made at Suwon District Court on December 14, 1995, and the auction procedure was in progress, and the said real estate was awarded in KRW 300,00,000 on April 10, 1996. Meanwhile, on October 14, 1991, the Plaintiff registered the provisional seizure with respect to the said real estate as the claim amounting to KRW 150,000,000,000,000 for the auction court.

With respect to the amount of KRW 163,692,657, which is the maximum debt amount of the above joint collateral mortgage of the defendant, the court below held that it is reasonable to preferentially distribute the amount of KRW 163,692,657, which is 295,554,280, which is calculated by deducting the execution cost from the successful bid price, etc. of the above joint collateral security, to the defendant, on the ground that the defendant has preferential right to payment regarding KRW 163,692,657, which is the maximum debt amount of the above joint collateral mortgage of the defendant, and to distribute the remainder of the above joint collateral mortgage of KRW 131,861,623 (295,54,280-163,692,657) (see Supreme Court Decision 92Da1896, May 26, 1992).

2. However, the above judgment of the court below which held that the defendant's general claims of this case can be distributed in proportion to the amount of claims in the same order as the plaintiff's above provisional attachment claims can not be accepted as it is.

A. The Defendant’s general claim of this case is a claim that exceeds the maximum debt amount of the above joint collateral and has no effect on preferential repayment. Accordingly, in order to distribute the Defendant’s general claim of this case which does not have the effect of preferential repayment in proportion to the same order among the Plaintiff, the creditor of provisional seizure, as stated in the judgment of the court below, it is not possible to be limited to the submission of a request for auction or a statement of claim in the same order, but it is necessary to separately make a legitimate demand for distribution under Articles 728 and 605 of the Civil Procedure Act or otherwise meet the necessary requirements. The above Supreme Court’s judgment cited in the judgment of the court below is related to the former Auction Act, and it is not applicable to this case.

B. However, the lower court, without examining whether the Defendant’s claim for distribution and other distribution of dividends are entitled to receive dividends in proportion to the amount apportioned among the Plaintiff’s above provisional seizure claims, as to the general claims of this case, which exceed the maximum debt amount of the Defendant’s above joint collateral security.

C. Therefore, the judgment of the court below does not err by misapprehending the legal principles on the demand for distribution of general claims or other qualifications for receiving dividends exceeding the maximum debt amount of the right to collateral security, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, the part against the plaintiff among the judgment below is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)