[1] In the event of consolidation of several auction cases, whether the mortgagee who has not completed the registration of establishment of a neighboring mortgage prior to the registration of commencement of the first auction should make a demand for distribution in the auction procedure in order to receive dividends (affirmative)

[2] The case holding that in the case where the auction procedure was conducted by combining several auction cases on land and buildings, it is unlawful for the court of execution to distribute dividends to the mortgagee who did not report the right and demand a distribution in the auction procedure, even though the registration of the commencement of the auction of the preceding auction case on land was completed after the registration of the commencement of the auction,

[1] According to the provisions of subparagraph 4 of Article 148 and Article 88(1) of the Civil Execution Act, any person who has completed the registration of establishment of a mortgage near the registration of commencement of auction after the registration of commencement of auction was made falls under a creditor entitled to a distribution to demand a distribution. The registration of establishment of a mortgage near the registration of establishment of a mortgage near the registration of commencement of auction is merely based on the first case where the registration of commencement of auction was combined, and even if the prior auction procedure falls under surplus, the decision of commencement of auction falls under the first case, and thus, the mortgagee, who has not

[2] In a case where several auction cases involving land and buildings are combined and the auction procedures are held in a blanket auction method, the case holding that it is unlawful for a court of execution to distribute the total maximum debt amount to Gap, who is only a mortgagee, to the land, even though Gap, who completed the registration of establishment of a neighboring mortgage on the land, did not report the right as a creditor during the auction procedure, even though the court of execution did not request a return of right and a demand for distribution

[1] Articles 88(1) and 148 subparag. 4 of the Civil Execution Act / [2] Articles 88(1) and 148 subparag. 4 of the Civil Execution Act

[Defendant-Appellee] Plaintiff (Attorney Choi Jong-chul, Counsel for defendant-appellee)

Defendant (Attorney Lee Dong-ho, Counsel for defendant-appellant)

March 31, 2011

1. From among the distribution schedule prepared by the above court on April 23, 2010, the amount of dividends to the defendant is KRW 300,000,000 and KRW 252,369,658 of the amount of dividends to the plaintiff is KRW 52,658 of the amount of dividends to the plaintiff, KRW 52,658 of the amount of dividends to the plaintiff is corrected to KRW 552,69,658 of the amount of dividends to the plaintiff, respectively.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Facts of recognition;

A. The plaintiff filed an application for compulsory auction with respect to the non-party 1's non-party 1's claim for KRW 400 million based on the No. 1260 of the No. 1260 of the No. 2007 No. 1207, and the claim for damages for delay against the non-party 1's non-party 1's claim for a compulsory auction against the land No. 709m2 (hereinafter "the land in this case") in Ulsan-gu, Ulsan District Court 2008, the decision of commencement of compulsory auction was completed on February 25, 2008. The registration of commencement of compulsory auction was completed on February 13, 2008. The land in this case had already been registered on February 13, 2008 by the non-party 2's application for compulsory auction before the commencement of the above auction.

B. Meanwhile, on October 5, 2007 with respect to the instant land, the registration of creation of the first-class mortgage (the second-class mortgage was transferred to Nonparty 4 by contract transfer on July 15, 2008, and again, on May 8, 2009, the registration of establishment of the first-class mortgage was completed with respect to the instant land as KRW 210 million out of the maximum debt amount (the second-class mortgage was partially registered with respect to KRW 50 million out of the maximum debt amount), which was recorded with Nonparty 2 and the Plaintiff’s registration of commencement of compulsory auction, and the registration of establishment of the mortgage was completed with the maximum debt amount as KRW 30 million on March 25, 2008.

C. As the process of compulsory auction on the instant land was delayed due to surplus, six buildings of reinforced concrete structure, reinforced concrete roof structure, and six buildings on the instant land (hereinafter “instant building”) have been completed and the registration of ownership preservation was completed, the Plaintiff was granted a decision of compulsory auction as to the instant land and buildings on November 26, 2008 by Ulsan District Court 2008 Mata12240, and the auction procedure was conducted by the Plaintiff pursuant to the collective auction method. On April 28, 2009, Nonparty 6 was again subjected to a decision of compulsory auction commencement on the instant land and buildings on April 28, 2009, Ulsan District Court 2009 Magsan District Court 2009Maa128, and the details of the procedure of compulsory auction on the instant land and buildings are as follows (On the other hand, the registration of ownership preservation was completed after the registration of ownership preservation, and the registration of establishment of a collateral security right was not established as Defendant 3).

Plaintiff 2, on February 25, 2008, 2008, 2540, 2008, 2008, 2540, 2008, 2008, 2008, May 23, 2008, Plaintiff 2008, 2008, 12240, 23.25, 2009, 20, 2009, 206.6.25, 200, 2009, 209, 200, 209, 200, 209, 200, 209, 200, 209, 209, 209, 200, 25,000,00,00,00,00) for a demand for distribution to the applicant creditor, and the case overlaps with the above case.

D. When the instant land and building was permitted to sell KRW 3.441 billion in total to Nonparty 7 and three others on March 29, 2010 according to the collective auction method, the court of execution did not have any fact that the Defendant filed a report on the right and demanded the distribution in the above auction procedure. However, the court of execution appeared in the order of 1.56 billion won to the transferee of the claim by Busan Mlomon Mutual Savings Bank, which is the first collective security right for the instant land and building, in the order of 3,423,70,817, which was the amount to be actually distributed after deducting the execution expenses, etc. from the distribution schedule as of April 23, 2010, and the Plaintiff appeared in the order of 2,400,000 won to the Defendant, who is the third collective security right against the instant land in the order of 3,423,500,000 won in total,300,000 won in total,000 won in dividends to the Plaintiff.

E. Meanwhile, the amount of claims held by the Plaintiff against Nonparty 1 on the basis of the date of distribution of the instant auction procedure is KRW 657,753,424, including the damages for delay calculated at the rate of 30% per annum, which is the highest interest rate under the Interest Limitation Act, from March 1, 2008 to April 23, 2010, including the principal amount of KRW 400,000,000.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3 (including virtual number), Eul evidence 8, the purport of the whole pleadings

2. The parties' assertion and judgment

A. The parties' assertion

The plaintiff asserts that the court of execution did not report the right and demand a distribution to the court of execution for the purpose of receiving a distribution as a creditor who had completed the registration of the establishment of a neighboring mortgage after the date of the auction registration for the land of this case, but did not make a demand for distribution, and that the court of execution distributed the distribution to the defendant in the auction procedure of this case is unlawful. The defendant asserted that the auction case of this case at the above 2008tagi2540, 3352 was illegal. Since the auction case of this case is obvious surplus, the actual progress of the auction was after the commencement of the auction in accordance with 12240, around 2008. The defendant had already completed the registration of the establishment of a collective auction for the land of this case. Thus, it is justifiable to view that the court of execution

B. Determination

1) According to the provisions of subparagraph 4 of Article 148 and Article 88(1) of the Civil Execution Act, any person who has completed the registration of establishment of a mortgage near the registration of commencement of auction after the registration of commencement of auction was made falls under a creditor entitled to receive a distribution to demand a distribution. As such, the registration of entry in the decision of commencement of auction is based on the combined first case, and it is only the first case, unless the decision of commencement of auction is revoked even if the prior auction procedure falls under a surplus without standing. Thus, the mortgagee, who has not completed the registration of establishment of a mortgage near the registration of establishment of a mortgage prior to the registration of commencement of auction in the first case, can receive a distribution to receive a distribution in the auction procedure to receive a distribution (the prior auction procedure is surplus without standing, so the decision of distribution should be made based on the date on which the substantial auction procedure

2) However, according to the above facts, the Defendant completed the registration of the establishment of a neighboring mortgage on the instant land after the registration of the commencement of auction in the instant case No. 2008, 2540, 3352 regarding the instant land, and on the other hand, at each of the auction procedures conducted jointly with the instant case, it is apparent that the Defendant did not report the right as a creditor and demand a distribution as a creditor. As such, the Defendant, who did not demand a distribution in the instant auction procedure, distributed the total maximum debt amount to the Defendant, who was only the mortgagee of the instant land, from the proceeds of sale of the instant land and building, to the Defendant who did not demand a distribution in the instant auction

3) Therefore, since the above dividends of KRW 300,00,000 against the defendant in the above dividends dividends of April 23, 2010 are unlawful, the above dividends against the defendant shall be KRW 0,00,00,00,000, respectively, and KRW 252,369,658 shall be corrected as KRW 552,369,658 against the plaintiff.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.

Judges Choi Ho-ho (Presiding Judge)