[1] In case where a joint mortgagee has received the total amount of the maximum debt amount by exercising the right to preferential reimbursement in the auction procedure concerning a part of the immovable property subject to the mortgage, whether he/she may be entitled to a new distribution in the auction procedure concerning another secured real property

[2] Whether a purchaser acquires real estate ownership in cases where a successful bidder paid the sale price in full as a result of a successful auction decision became final and conclusive as a result of a final and conclusive auction procedure, even though the mortgage has been extinguished upon the extinction of the secured claim (negative)

[1] Article 368 of the Civil Act / [2] Article 369 of the Civil Act, Article 267 of the Civil Execution Act

[2] Supreme Court Decision 75Da994 delivered on February 10, 1976 (Gong1976, 8979) Supreme Court Decision 98Da51855 delivered on February 9, 199

Plaintiff

Defendant (Law Firm Flag, Attorneys Lee Jae-soo et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2010Na34705 decided July 14, 2011

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Pursuant to the Civil Act, the Commercial Act, and other Acts, a mortgagee may obtain reimbursement prior to the general creditor or junior mortgagee within the maximum debt amount. This also applies to joint collateral mortgages, and thus, the right to preferential reimbursement from the proceeds of the entire proceeds of the joint collateral is the right to preferentially recover claims within the scope of such right to preferential reimbursement as above. Such right to preferential reimbursement may be exercised by means of priority payment, instead of preventing the joint mortgagee from exercising the right to preferential reimbursement, even in a case where the joint collateral mortgagee executes an auction by another person. Meanwhile, if the joint collateral collateral is owned by the joint collateral mortgagee, the right to secure another person’s property is deemed to be equivalent to the maximum debt amount. If the joint collateral collateral collateral is not held by the joint collateral mortgagee, and if it is possible to obtain repeatedly dividends from the proceeds of the realization of each joint collateral collateral amount, the right to preferential reimbursement from the proceeds of the joint collateral may be determined regardless of whether the joint collateral mortgagee actively applied for the auction or the third person’s intention to participate in the auction procedure, regardless of whether the joint collateral mortgagee has been apportioned or not.

According to the reasoning of the judgment of the court of first instance cited by the court below, among the land (number 1, 2, 3, 4, 5 omitted), 660/240 of the YYYYYYYYYYYYYYYYYYYYYYY, the portion of each share is jointly secured by 660/240,000 of the co-ownership of the non-party 1, and the non-party 2 completed the registration of creation of a mortgage (hereinafter the "mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-backed joint mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-backed joint mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-family.

The judgment below to the same purport is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles regarding the exercise of preferential right to reimbursement.

2. Regarding ground of appeal No. 2

If a decision to commence the auction becomes final and conclusive due to the extinction of the secured claim even though the mortgage was extinguished due to the extinction of the secured claim, it is the procedure and decision of invalidation made based on the extinguished mortgage, and even if the purchaser paid the sale price in full, it cannot acquire the ownership of the real estate (see Supreme Court Decision 98Da51855 delivered on February 9, 199).

According to the reasoning of the judgment below, the court below held that, inasmuch as Nonparty 2, a joint mortgagee of the instant case, received the total maximum debt amount in the first auction procedure, and the joint collateral mortgage of the instant case had already been extinguished, the court below held that the voluntary auction procedure based on the joint collateral mortgage of the instant case (hereinafter “second auction procedure”) with respect to the share of 660/2,40 out of the instant land is null and void, the Defendant, a purchaser of the instant land in the second auction procedure, has a duty to implement the procedure for cancellation of ownership transfer registration as to the share of 660/2,40 out of the instant land, barring any special circumstance. In light of the above legal principles and records, the judgment below is just and there

3. As to grounds of appeal Nos. 3 and 4

According to the reasoning of the judgment of the court of first instance cited by the court below, even if the plaintiff received dividends and delivered the land of this case to the defendant in the second auction procedure based on the joint collateral security of this case invalid by the plaintiff in light of the fact that the person who created the joint collateral security of this case is the non-party 1 and the debtor is the non-party 3 and the plaintiff is the non-party 3 acquisitor, it is rejected the defendant's defense that the plaintiff's claim of this case violates the principle of the speech and the principle of good faith by deeming that the plaintiff cannot be seen as the purchaser's trust that the joint collateral security of this case is valid. In light of the relevant legal principles and records

Other grounds of appeal are apparent in the record that the defendant newly asserted in the final appeal and was never asserted before the closing of argument in the original trial, and therefore, it cannot be a legitimate ground of appeal.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)