Status of a person who makes a subrogation against the previous creditor as a dividend;

Where part of the secured obligation under the right to collateral security has been subrogated, the person who has subrogated may receive the distribution if it is clearly explained that he/she has the right to subrogate before the distribution schedule becomes final and conclusive, even if

Article 56 of the National Tax Collection Act (Request for Delivery)

Busan District Court 2016dan35454 ( November 15, 2017)

AA Guarantee Fund

Korea

November 01, 201

November 15, 2017

1. Of the distribution schedule prepared by the above court on November 29, 2016, the amount of KRW 10,000,000 against the plaintiff shall be 21,206,670 won, and the amount of KRW 31,856,888 won against the defendant shall be corrected to 20,650,218 won, among the distribution schedule prepared by the Busan District Court on November 29, 2016.

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

The same shall apply to the order of the Gu office.

1. Factual basis

A. On May 11, 2012, the Plaintiff entered into a credit guarantee agreement on KRW 81,00,000, out of KRW 90,000,000 with respect to the loans to CCB. On January 27, 2016, the Plaintiff subrogated for KRW 32,46,846 to CC Bank on January 27, 2016 due to the occurrence of a credit guarantee accident with respect to B. With respect to ○○○○-dong ○○○-dong ○○○○○○○○○○○○○○○○○ (hereinafter “instant collateral security”). On May 11, 2012, the CC Bank established a collateral security agreement on KRW 72,00,000 among them, with respect to KRW 10,000,000,000 as a collateral security prior to January 27, 2016.

B. On May 16, 2016, this Court rendered a decision to commence compulsory sale of the said real estate owned by thisB (hereinafter “instant auction”) around 2016, and on July 27, 2016, the period for demand for distribution was July 2016. In the instant auction procedure,CC bank submitted a claim statement of KRW 48,601,087 (principal principal 4,086,418 + interest 4,514,69 won as of July 4, 2016) with respect to the instant collective security, and the claim statement of KRW 50,793,30 (value 4,086,418 + value 418 + value 10,000) with respect to the instant collective security (value 4,086,416,418) with respect to the amount of national taxes, as of July 16, 2016, the Defendant issued a legal claim statement of KRW 16,2016.7

With respect to the maximum debt amount of 72,00,000 won of the instant mortgage, the Plaintiff agreed to receive dividends in proportion to KRW 21,206,670 and KRW 50,793,330 of theCC bank, and submitted the agreement to the distribution court on November 29, 2016. The distribution court prepared a distribution schedule to distribute the amount of KRW 171,548,129, which is the date of distribution, to be distributed on November 29, 2016 to the Defendant, who is the right to deliver the dividends. The distribution court shall preferentially distribute the amount of KRW 171,548,129, which is to be distributed on November 29, 2016 to the priority wage creditors, the right to deliver the relevant taxes, and the senior mortgagee, and the remaining amount of KRW 92,650,218 to the Plaintiff.

D. On the date of distribution of the auction procedure of this case, the Plaintiff raised an objection against KRW 11,206,670, which was not apportioned among the maximum debt amount of the instant mortgage among the dividends against the Defendant.

[Reasons for Recognition] Facts without dispute, Gap evidence No. 1 to Gap evidence No. 8, the purport of the whole pleadings

2. The parties' assertion

The Plaintiff asserts that as a part of the subrogation may exercise the right to the right to the right to collateral security of this case, it shall be apportioned prior to the Defendant within the maximum debt amount.

In regard to this, the defendant asserts that since the plaintiff submitted a dividend agreement and exercised the right of subrogation as the expiration of the period for demand for distribution, it shall not be valid, and since theCC Bank reported the claim of KRW 50,793,330 with respect to the instant right to collateral security in this case, it shall not be distributed in preference to the defendant in excess of the above amount.

3. Determination

A. Where a person who has a legitimate interest to repay part of the secured claim on behalf of the debtor has subrogated for the debtor, the subrogated person shall naturally acquire the rights to the claim and security held by the previous creditors within the extent of the value of performance, regardless of whether a supplementary registration of partial transfer of the right to collateral security has been made, regardless of whether a repayment has been made, and where previous creditors have already demand a distribution or have been able to receive a distribution without the demand for distribution, the subrogated person may receive a distribution even if he did not separately demand a distribution (see, e.g., Supreme Court Decision 2004Da2762, Feb. 10, 2006). In this case, even if the subrogated person did not demand a distribution, he/she may not submit a distribution statement within 96 days prior to the determination of the distribution schedule (see, e.g., Supreme Court Decision 2005Da70816, Sept. 7, 2007). In addition, even if he/she did not submit the distribution statement within 196 days prior to the date of the distribution schedule.

B. The Plaintiff, in accordance with the credit guarantee agreement, has legally acquired the right to the instant right to the instant right to the collateral within the scope of the amount repaid by subrogation to theCC bank as a matter of course a part of the secured debt of the instant right to the collateral security, and in the auction procedure of the instant case,CC bank, the original creditor, is the mortgagee registered prior to the registration of the decision on commencement of auction. As such, the Plaintiff, as the subrogation right, may receive the distribution even if the Plaintiff did

In addition, even if theCC bank submitted a claim statement stating only the remaining amount of debt, excluding the amount of subrogated payment, the claim amount may be revised until the distribution schedule becomes final and conclusive, and such right is equally recognized to the Plaintiff, a partial subrogation authority, and thus, if the Plaintiff submitted a dividend agreement made between the Plaintiff and theCC bank on the date of distribution, the distribution court should recognize the Plaintiff’s right as the subrogation within the scope of the maximum amount of debt and distribute the amount in accordance with the distribution agreement.

The instant right to collateral security was established on May 11, 2012, and the statutory due date of the national tax that the Defendant demanded to distribute as a delivery authority on or after October 25, 2014, the instant right to collateral security takes precedence over the national tax. Thus, the instant right to collateral security should be distributed to CC Bank for KRW 50,793,30, and KRW 21,206,670 to the Plaintiff, while the amount should be paid to the Plaintiff for KRW 10,000,000 and the remaining KRW 11,206,670 to the Defendant was erroneously paid to the Defendant. As such, in the distribution schedule, the amount of dividends to the Plaintiff was erroneously paid KRW 21,20,000 to the Defendant, KRW 31,856,888,20 to the Defendant as the dividend amount was corrected to KRW 20,675,218 to the Defendant.

4. Conclusion

The plaintiff's claim is justified and accepted.