[1] The method of preparing a distribution schedule and the method of raising an objection against a distribution, in case where creditors and claims entitled to receive dividends from the proceeds of selling each of the properties are different in case where the site, building, building, and other buildings

[2] The meaning of "the auction price for each real estate" under Article 368 (1) of the Civil Code

[3] In a case where the junior mortgagee files an application for auction, the time when the secured claim of the senior mortgagee is determined (i.e., the time when the successful bid price is fully paid) and in a case where the secured claim of the senior mortgagee of the senior mortgagee of the above senior mortgagee of the apartment building already implemented guarantees the defects of the aggregate building construction at a certain time in the future,

[1] The distribution procedure is basically different from the case of individual auction, even in a case where both the building site and a building and a building and another building are the objects of the auction procedure and they are the objects of the auction procedure. Thus, as in the case of individual auction of the building site and a building and another building, the right holder to the building site shall receive dividends differently from the proceeds from the sale of each building. Therefore, in a case where the building site and a building and another building are sold en bloc, if the creditors and the claims to receive dividends from the proceeds from the sale of each real estate are different, the so-called individual distribution foundation should be formed for each real estate and then the so-called individual distribution foundation should be prepared for each payment. In this case, objections to the distribution schedule should be separately processed for each object. Even if the distribution schedule was prepared as one of the objects of the auction procedure, this is merely a case where the distribution schedule for the proceeds from the sale of the building site and a building and each distribution schedule for each building and the proceeds from the sale of each building were made for one of the creditors to receive dividends from the junior creditors.

[2] "The auction proceeds of each real estate" under Article 368 (1) of the Civil Code refers to the balance after deducting the auction expenses and senior claims to be borne by the real estate in question from the sale proceeds.

[3] In general, when a subordinate mortgagee files an application for auction, the claim secured by the senior mortgagee is determined at the time when the successful bidder terminates the auction price, i.e., when the successful bidder fully pays the auction price, but where the debtor guarantees the defects of the construction of an apartment that executed the aggregate construction by a certain period, such defects are not found yet occurred or are under progress at the time of the completion of the above apartment construction, and the necessity of warranty is not yet extinguished despite the completion of the auction procedure. Furthermore, it is common to recognize and conduct transactions as having already been determined by the senior mortgagee as having the security value equivalent to the maximum debt amount of the senior mortgagee's mortgage, and even if the increased amount of the debt secured by the senior mortgagee's mortgage increases within the maximum debt amount until the expiration of the warranty period, it cannot be deemed that the senior mortgagee suffers from unexpected damages due to the successful mortgagee's failure to file an application for auction within the limits of the maximum amount of the secured debt determined at the time of the auction. However, even if the senior mortgagee did not do not request the auction, it is reasonable to regard that the senior mortgagee's would not lose the security value at the auction.

[1] Articles 145, 150, and 151 of the Civil Execution Act / [2] Article 368 (1) of the Civil Act / [3] Article 357 (1) of the Civil Act, Article 91 (2) of the Civil Execution Act

[1] Supreme Court Decision 2001Da66291 Decided September 5, 2003 (Gong2003Ha, 2004) Supreme Court Decision 2003Da17682 Decided February 27, 2004 (Gong2004Sang, 538) / [2] Supreme Court Decision 2001Da66291 Decided September 5, 2003 (Gong2003Ha, 2004) / [3] Supreme Court Decision 99Da26085 Decided September 21, 199 (Gong199Ha, 2200), Supreme Court Decision 2001Du7329 Decided December 11, 2001 (Gong202Sang, 303)

Korean Bank, Inc.

Ansan-Appointed et al. (Law Firm Taesung, Attorneys Kim Woo-won, Counsel for the plaintiff-appellant)

February 24, 2005

1. Of the distribution schedule prepared by this court on August 10, 2004, the amount of 100,000,000,000 won for the amount of dividends for the defendant's order among the distribution schedule prepared by this court on August 10, 2004, KRW 60,214,360, and KRW 130,573,09 of the amount of dividends for the plaintiff's order shall be corrected to KRW 170,358,739, respectively.

2. The plaintiff's remaining claims against the defendant's order of well-known, the appointment of the defendant, and the claim against the Ilsung Construction Co., Ltd. are all dismissed.

3. Of the costs of lawsuit, 1/2 of the portion arising between the Plaintiff and the Defendant’s order shall be borne by the Plaintiff, the remainder by the said Defendant, and the portion arising between the Plaintiff and the Defendant’s and the Ilsung Construction Co., Ltd.

Of the dividend table set forth in Paragraph (1) of this Article, the amount of KRW 16,00,000 for the selection of the defendant in accordance with the order shall be deleted, and KRW 100,000,000 for the amount of dividends against the defendant's order shall be KRW 60,214,360, the amount of dividends of KRW 140,000 for the defendant's order, KRW 45,00,000 for the amount of dividends against the defendant's order, KRW 130,573,09 for the plaintiff's order shall be corrected to KRW 277,358,739, respectively.

1. Basic facts

A. The defendants' establishment of the right to collateral security and conclusion of the lease agreement

(1) Defendant Ilsung Construction Co., Ltd. (hereinafter referred to as the “Defendant Co., Ltd.”) awarded a contract with the Korea National Housing Corporation for the construction of the Gansung apartment, and awarded a subcontract for the part of the Cansung Construction to the non-party Lee Jong-tae. However, on March 9, 198, the Bansung set up a mortgage for the remaining share of each house as stated in the separate sheet No. 1 (hereinafter referred to as the “instant land”) owned by the said Defendant in order to guarantee the defect that occurred until December 31, 2007 due to the above structural construction performed by the said Defendant, and for each house listed in the separate sheet No. 2 and No. 3 of the separate sheet, set up a mortgage for the share of KRW 140 million with respect to the maximum debt amount of each house as stated in the separate sheet No. 2 and No. 3 on October 27, 201.

(2) On August 13, 2001, the Defendant’s order entered into a lease agreement with the above Lee Jong-bok, stating that the housing indicated in the [Attachment List No. 2 (hereinafter “First Housing”) was leased as KRW 24 months from September 16, 2001 and KRW 100 million from the lease deposit, and around that time, paid the lease deposit and received the fixed date along with the moving-in report on September 24, 2001.

(3) On May 7, 2003, the Defendant’s Selection entered into a lease agreement between the Lee Jong-bok and Lee Jong-soo, stating that the housing listed in the [Attachment List No. 3 (hereinafter “the housing of this case”) shall be rent 200,000 won, the lease deposit amount of KRW 20,000,000, and the lease term of KRW 15,000,000, and the lease term of May 15, 2003. At that time, the above lease deposit was paid, and the said house was issued a fixed date along with the move-in report on May 4, 2003.

B. Details of the distribution procedure of this case

(1) In order to secure a loan borrowed from the Plaintiff, the Plaintiff set up a collateral on October 31, 2001 as to each real estate listed in the separate sheet owned by Sungsung Construction Co., Ltd. (hereinafter referred to as the “Ssung Construction”) with a maximum debt amount of KRW 390 million on the separate sheet owned by the Plaintiff (hereinafter referred to as the “each real estate of this case”), and thereafter, upon delinquency in the payment of the above loan obligation, the Plaintiff filed an application for an auction of real estate based on the aforementioned collateral security (hereinafter referred to as the “instant auction procedure”) at the auction procedure conducted on November 10, 2003 by the court around 2003ta 32347, the Plaintiff filed a report on the claim declaration that the amount of the loan for Sungsung Construction reaches KRW 651,125,299.

(2) In the instant auction procedure, the Defendant Company submitted a claim statement to the effect that the secured debt based on the right to collateral security on December 10, 2003 and October 27, 2001 reaches KRW 140,000,000. On December 10, 2003, the Defendant Company reported each right and demanded the distribution to return the leased deposit based on each of the above lease agreements while participating in the instant auction procedure on February 6, 2004.

(3) After the execution of the instant auction procedure, the distribution court set up a distribution schedule (A evidence 2; hereinafter referred to as the "distribution schedule of this case") stating that the amount to be actually distributed on August 10, 2004, which is the date of distribution, shall be KRW 392,425,889, which is the date of distribution, shall be set at KRW 16,000,000,000,000 to the Defendant Company, the senior mortgagee, to the Defendant Company, who is the lessee, who is the lessee with the fixed date, and KRW 130,573,09,000,000 to the Plaintiff, the applicant creditor, respectively. On August 16, 2004, the Plaintiff at the time of the distribution date of this case raised an objection against the Defendants as to the entire amount of each of the above dividends, and filed a lawsuit of demurrer against the Defendants on August 16, 2004.

[Evidence] Facts without dispute, Gap's evidence 1-3, Gap's evidence 1-2, Gap's evidence 1-3, Gap's evidence 1-2, Gap's evidence 4-1-3, Gap's evidence 5-1-4, Gap's evidence 6, 7-1-3, Gap's evidence 1-3, Gap's evidence 8-10, and the purport of the whole pleadings

2. Determination as to the Plaintiff’s request for the selection of the Defendant

A. The plaintiff's assertion

At the time of entering into a lease agreement, the Plaintiff asserts to the effect that the amount of KRW 340,00,000,000,000, which was paid to the Defendant was unfair, even if the Defendant had already been placed in a provisional attachment on the instant housing No. 2 with the right to collateral security and the claim amounting to KRW 340,000,00 was difficult to be refunded even to the small-sum lessee. Also, considering the fact that he was an employee of the Sung-dong Construction, which was operated by the obligor, the most lessee. ② Even if not, the above Defendant’s 398-163th, Jung-gu, Seoul, Jung-gu, Seoul, which was the resident registration on the move-in housing, was the location of the instant housing No. 2, and it is difficult to view that the said Defendant’s 301,000,000,000,000, which was distributed to the said Defendant.

(b) Markets:

First of all, according to the plaintiff's argument that ① the above tenant's assertion was examined, each of the above evidence, and the fact-finding on the National Health Insurance Corporation, and the defendant's selection was made on May 7, 2003 as an employee who worked for the emulative construction operated by the emulative uniform, the debtor, from November 1, 2002 to January 1, 2003. The lease contract of this case was concluded on May 7, 2003, which was immediately after the retirement. It was acknowledged that a complicated relation of rights was established as alleged by the plaintiff with respect to the emulative housing of this case at the time, but there was no evidence that the emulative housing of this case was established as the 3rd tenant's emulative housing's 1 and 2, and the testimony and arguments of the witness Kim-un's emulative housing of this case were stated on May 7, 2003. The plaintiff's allegation that the emulative housing of this case was the 3rd housing's e.

3. Determination as to the plaintiff's claim against the defendant order

A. The plaintiff's assertion

The Plaintiff asserts to the effect that the portion exceeding KRW 60,214,360, out of the amount distributed to the above Defendant’s dividends of KRW 100 million, exceeds KRW 60,214,360, out of the total proceeds of the sale of each of the instant real estate and the ownership of the site thereof, is unjust, since the Defendant’s order was merely the most lessee who leased the instant house No. 1 for the purpose of securing the claim even though he resides with Nonparty Park Young-dong, Mapo-dong, Seoul, 26-5, which was the husband of the instant case, with the aim of securing the claim. ② Even if not, the lessee of the instant house No. 1 was paid only out of the proceeds of the sale of each of the instant real estate and the ownership of the instant land.

(b) Markets:

First, considering the plaintiff's argument regarding the most lessee's argument, it is not sufficient to recognize it with all the plaintiff's proof, and there is no other evidence to acknowledge it. Thus, this part of the plaintiff's argument is

Next, the Plaintiff’s assertion on the scope of distribution is that the distribution procedure is basically different from the case of individual auction, even in a case where a blanket auction is conducted as to the subject matter of the auction procedure with the building site and the building site and the building and other buildings together, the right holder on the site should receive dividends from the proceeds from the sale of each building, and as such, in a case where the right holder on each building sells the building site and the building and other buildings collectively, the right holder on each building should receive dividends from the proceeds from the sale of each building. Therefore, in a case where a creditor and a claim to receive dividends from the proceeds from the sale of each real estate are different, if a creditor and a claim to receive dividends from each of the proceeds from the sale of each real estate are different, a separate distribution schedule shall be prepared for each of the proceeds from the sale of each real estate. In this case, an objection to the distribution schedule shall be separately processed as the subject matter of the distribution schedule prepared for each of the building site and building and other buildings, even if the distribution schedule was formulated as one for each of the creditors on each of the subsequent 20th creditors.

According to the evidence mentioned above and Gap evidence Nos. 15-1 through 3, the distribution court, while proceeding to distribute each of the real estate of this case, is different from each of the right holders. Thus, the distribution court, while proceeding to distribute each of the real estate of this case, did not distinguish the sale proceeds of each of the land of this case and the land of this case and the land of this case from each of the right holders. However, the distribution court, while proceeding to distribute each of the real estate of this case, did not distinguish the sale proceeds of each of the land of this case and the land of this case and the land of this case from each of the right holders. Accordingly, it can be recognized the fact that the defendant Jung-dae operated a collective distribution to each of the right holders without distinguishing each of the right holders.

Furthermore, according to the above evidence, among the amount to be distributed in the distribution procedure of this case, the amount to be distributed to the defendant's order after deducting the amount to be distributed to the defendant's order from the above amount to the non-party 1 and the share of the housing site of this case and the above amount to be distributed to the defendant's company from the above amount to the actual distribution procedure of this case, the amount to be distributed to the defendant's order is KRW 58,801,006, as stated in the distribution column in the attached Table Do Do Do Do Do Do 100 million, which exceeds the above 58,801,006, out of the amount to be distributed to the above defendant's 100 million won in the distribution procedure of this case, 41,198,94 won is unfair. Thus, the plaintiff's assertion is justified within the above scope of the above recognition [the amount to be apportioned to the above defendant's 60,214,360 won among the amount to be distributed to the defendant's order of this case 10.

4. Determination as to the plaintiff's claim against the defendant company

A. The plaintiff's assertion

① Upon the completion of the auction procedure of this case, the Plaintiff’s warranty liability for the Defendant Company’s claims arising from the defects determined as the secured claim of each of the above secured claims of the Defendant Company and completed the future. ② Also, the Defendant Company’s warranty liability has already been terminated after the lapse of five years from April 6, 1998, which was the date of the registration of ownership preservation of the light-type apartment, to the expiration of the warranty liability of the Defendant Company, which is the project undertaker. As such, there is no warranty liability to guarantee the payment of the uniforms, other than the defect warranty amount of KRW 45 million already paid by the Defendant Company, which is based on each of the above secured claims. Thus, the distribution court asserts to the effect that it is unreasonable to distribute the entire maximum debt amount exceeding the above KRW 45 million to the Defendant Company for the warranty liability claim already extinguished.

(b) Markets:

In light of the above, the right to collateral security should be deemed to have been established when the successful bidder completely pays the successful bid price (see Supreme Court Decision 9Da26085, Sept. 21, 199). However, the defendant company's claim on collateral security of this case is to guarantee the defects of the above construction work, which occurred until December 31, 2007, set forth as the guarantee period for the aggregate apartment for which the uniforms were executed, until December 31, 2007, since the above apartment was already or were under way at the time of completion of the auction, and the necessity of guaranteeing defects is not yet extinguished notwithstanding the termination of the auction procedure of this case. Since the plaintiff's claim on collateral security of this case cannot be seen as having been established at the time of expiration of the auction period, the right to collateral security of this case, which was already set as the guarantee period for the collective housing, should not be seen as having been determined as having been within the maximum limit of the maximum amount of the maximum debt amount of the senior mortgages, the plaintiff's claim on collateral security was not established.

Therefore, the dividend court shall determine the amount of the secured debt of the Defendant Company’s instant right to collateral security as KRW 140 million, the maximum debt amount, and it is reasonable to distribute the said amount.

5. Conclusion

As the plaintiff seeks, the amount of dividends for the defendant's order among the distribution schedule of this case shall be 60,214,360 won; 130,573,09 won for the plaintiff's dividends to the plaintiff; 170,358,739 won [130,573,09 won + (10,000,000 won - 60,214,360 won)]; thus, the plaintiff's claims for the defendant's order for the defendant's order shall be accepted within the extent of the above recognition; the remaining claims for the defendant's remaining claims for the defendant's order and for the defendant's company shall be dismissed as it is without merit.

Judges Kim Chungcheong-Woo (Presiding Judge)