The Korea Trade Insurance Corporation (Law Firm Jin Law, Attorney Kim Dong-seok, Counsel for defendant-appellant)

Korea Technology Finance Corporation (Attorney Lee In-hee, Counsel for defendant)

November 11, 2010

Incheon District Court Decision 2009Da55104 Decided May 13, 2010

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

Of the distribution schedule prepared on June 18, 2009 by this court with respect to the auction of real estate (No. 61023) in Incheon District Court 2007, the amount of dividends to the plaintiff shall be corrected to KRW 87,963,718, and KRW 216,361,936 to the defendant shall be corrected to KRW 128,398,218.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

This court's reasoning is the same as the reasoning of the judgment of the court of first instance, except for the following addition to the reasoning of the judgment of the court of first instance.

2. The addition;

○ Part 5 of the fifth decision of the first instance shall be added following the second decision:

The defendant asserts that the distribution court's distribution of the dividend amount of KRW 4,035,167,103 against the right to collateral security of a new bank was made by mistake that the plaintiff was in the position of junior provisional seizure creditor who is not a partial subrogation creditor, and that the new bank, which is the senior senior collateral security creditor, absorbs the proportional distribution amount against the plaintiff who is the junior provisional seizure creditor. Thus, the infringement of the plaintiff's distribution against the new bank is not the defendant, but the new bank, and therefore, it is not possible to raise an objection against the defendant against the new bank.

Therefore, comprehensively taking account of the following facts: Gap evidence Nos. 2 and 3 Eul evidence Nos. 3 and the purport of the whole arguments and arguments, the new bank: (i) the dividend court of June 10, 2009; (ii) the total amount of claims of the new bank is KRW 3,819,875,976 note 1); (iii), the estimated dividend amount of KRW 4,035,167,103 note 2) out of KRW 3,624,145,187 out of the total amount of KRW 41,021,916 of the new bank; (iii) the dividends amount of KRW 150,075,000; and (iv) the dividends amount of KRW 480,00,000; and (iv) the dividends amount of KRW 2636,786,367,7816,367,7867,467,767,200

However, in case where a person who has a legitimate interest in repayment on behalf of the debtor makes a partial payment of the secured obligation on behalf of the debtor, the person who makes the subrogation shall obtain as a matter of course the rights to the claim and the security held by the previous creditor within the extent of the value of the repayment, regardless of whether or not the additional registration of partial transfer of the secured obligation, which was based on a partial subrogation of the secured obligation, has been made, but even in this case the creditor shall have preferential right to payment against the person who makes the subrogation. In this case, the creditor's preferential right to payment shall extend to the whole of the remaining amount of obligation he holds within the extent of the secured obligation (see Supreme Court

Therefore, the new bank has preferential rights to payment as to all remaining claims against the plaintiff and the defendant, regardless of whether the additional registration of partial transfer of the right to collateral security has been made or not. Thus, in receiving dividends for the amount of dividends for the right to collateral security Nos. 5 through 11, any of the plaintiff and the defendant can absorb the amount of dividends for either the plaintiff or the defendant, and the new bank should receive dividends in proportion to their respective claims after receiving preferential dividends in proportion to their respective claims. Therefore, since the family dividend court distributed dividends to the plaintiff in the way of absorbing the amount of dividends to the plaintiff, it cannot be deemed that the new bank violated the plaintiff's dividends, the defendant's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Dong-ok (Presiding Judge)

Note 1) The remainder of the amount of credit which remains after deducting the amount of subrogation by the original and the Defendant.

2) From 4,171,800,000 won to the aggregate of the maximum debt amount of the right to collateral security set forth in the title of the new bank, the remainder of the 136,632,897 won apportioned on May 23, 2008 by the new bank during the auction procedure for the joint collateral security set forth in the 111st mortgage.

3) As seen earlier, each provisional seizure in the name of the plaintiff and the defendant is subordinate to each right to collateral security in the name of the new bank, and the status of partial subrogation is a matter.

4) The Defendant partly transferred 340,800,000 won out of the 111st mortgage to the new bank, which is the creditor, and 368,50,000 won out of the 11st mortgage. If the creditor has several collateral mortgages, the Defendant first distributes dividends to the new bank in order of priority, i.e., the sum of the maximum debt amount of the 2,774,800,000 won to the new bank (the sum of the maximum debt amount of the 5,000,00 won to the new bank, 166,20,000 won to the new bank, and 340,80,800,000 won to the Defendant (and the Plaintiff), and if all of the creditors were paid by subrogation to the new and new Defendants in order of priority, it would be reasonable to view that some of the creditors were paid by subrogation to the new and new Defendants in accordance with the order of priority to the new and new creditors.