[1] Whether the secured claim of the right to collateral security becomes final and conclusive with the claim amount stated in the application form for auction in a voluntary auction filed by the mortgagee (negative)

[2] Whether the creditor who filed a request for a partial auction has failed to take necessary measures, such as double auction, and can file a claim for return of unjust enrichment with junior creditor with the amount of remaining secured claims not distributed (negative)

[1] When a mortgagee has applied for an auction to exercise a security right on his/her own, the secured claim shall be finalized with a claim arising from the basic contract until the time the mortgagee applied for an auction. In this case, where the applicant creditor applied for an auction by stating only part of the secured claim as the claim amount, barring any special circumstances, the applicant creditor shall set the amount to be distributed within the limit of the claim amount stated in the auction procedure, and the secured claim shall not be determined as the claim amount stated in

[2] In the auction for the exercise of a security right, in case where an applicant creditor entered only a part of the secured claim as the claim amount in the auction application, barring any other special circumstance, the applicant creditor shall be determined to the extent of the claim amount stated in the auction application, and the claim amount cannot be expanded by the method that the applicant creditor submits a claim statement. Thus, even if the applicant creditor had any other secured claim not stated in the auction application, it shall not participate in the distribution of the amount exceeding the claim amount at the time of the request for auction out of the amount of the secured claim amount, and the distribution court is sufficient to distribute only to the applicant creditor only the claim amount at the time of the request for auction. Therefore, it is sufficient that the distribution court, as a dividend court, only stated only a part of the secured claim as the claim amount and submitted an auction for the exercise of a security right after applying for an auction in the auction application, and did not take necessary measures such as filing an application for double auction by the auction date, and if the distribution was prepared and finalized based on the claim amount stated in the auction application and conducted in accordance with it, it cannot be viewed as a dividend creditor.

[1] Article 357 of the Civil Act; Articles 728 and 601 subparag. 3 of the Civil Procedure Act; Article 204 of the Rules of Civil Procedure / [2] Article 741 of the Civil Act; Articles 728, 605, 658, 593, and 595 of the Civil Procedure Act

[1] Supreme Court Decisions 92Da48567 decided Mar. 12, 1993 (Gong1993, 1167), 92Da50270 decided Jan. 25, 1994 (Gong1994, 792), 94Da8952 decided Feb. 28, 1995 (Gong195, 145, 145), 95Da15261 decided Jun. 9, 195 (Gong1995, 298, 298) (Gong195, 297, 298, 396, 1969, 1969, 1967, 1985, 198, 196, 196, 198, 196, 196, 197, 196, 196, 296, 1967, 1996.

Industrial Bank of Korea (Attorney Kang Jae-hun, Counsel for defendant-appellee)

Maok-type et al.

Seoul District Court Decision 95Na31767 delivered on November 15, 1995

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

1. Regarding ground of appeal No. 1

The issue is that the court below's determination that the claim for return of unjust enrichment in this case goes against the res judicata of the previous suit is erroneous, but it merely criticizes the judgment of the court below on the premise that the court below did not recognize it.

2. As to the grounds of appeal Nos. 2 and 3

According to the reasoning of the judgment, the court below rejected the plaintiff 2's claim on August 28, 198, 198, 200 won for interest on the above real estate 1 to the 3rd 2nd 4th 7th e.g., 5th e., 7th e., 7th e., 7th e., 5th e., 5th e., 6th e., e., 5th e., e., 5th 7th e., 5th e., e., 5th 7th e., e., 5th 7th e., e., 5th e., e., 5th e., e., e., 5th e., e., e., 197. e., e., e., 14th e., e. 7th e.

When a mortgagee of a right to collateral security voluntarily applies for an auction to exercise the right to collateral, the secured claim becomes final and conclusive with a claim arising from the basic contract until that time (Supreme Court Decisions 87Da48567 delivered on October 11, 198, 92Da48567 delivered on March 12, 1993, 95Da36596 delivered on March 8, 1996, and 95Da36596 delivered on March 16, 196). In this case, where the applicant creditor applied for an auction by stating only a part of the secured claim as the claim amount, barring any other special circumstances, the applicant creditor shall be limited to the amount of the secured claim stated in the application for the auction (see Supreme Court Decisions 92Da50270 delivered on January 25, 1994, 94Da8952 delivered on February 28, 195, 197Da16597 delivered on June 16, 1995).

Nevertheless, the court below did not err by misapprehending the legal principles on the confirmation and scope of the secured debt of the right to collateral security, since the court below determined that only a part of the secured debt was the claim amount when the plaintiff applied for the auction of this case, and thus the secured debt of this case was determined as the claim amount stated in the application for the auction.

However, as seen above, in the auction for the exercise of a security right, in case where the applicant creditor entered only part of the secured debt as the claim amount in the auction application, barring any other special circumstances, the applicant creditor shall be determined to the extent of the claim amount stated in the auction application, and the claim amount cannot be expanded by the method that the applicant creditor submits a bond account statement. Thus, even if the applicant creditor had another secured debt not stated in the application for auction, it shall not participate in the dividend as to the amount exceeding the claim amount at the time of the request for auction among the amount of the secured debt, and the dividend court shall be sufficient to distribute only the claim amount at the time of the request for auction to the applicant creditor.

Therefore, as determined by the court below, if the plaintiff, a collateral security holder, applied for an auction for the exercise of a security right by stating only a part of the secured claim as the claim amount and submitted a claim statement for the extension of the claim amount, and did not take any measures such as double auction until the auction date, and the distribution was conducted accordingly, the distribution schedule of this case based on the claim amount stated in the auction application was prepared and confirmed and the distribution was conducted, the corresponding amount of the part claimed by the applicant creditor was distributed to the defendants, a subordinate creditor, and it cannot be deemed that there is no legal ground. Ultimately, the conclusion that the court below rejected the plaintiff's above assertion is legitimate, and thus, the argument is without merit.

In addition, since the mortgagee can exercise his/her right to the whole mortgaged property until he/she receives full repayment of the claim under the Civil Act, even if it is impossible to permit the expansion of the claim amount by the account statement, etc. after a partial claim is filed by the mortgagee who is the applicant creditor in accordance with the ideology of the auction procedure, the substantive legal relationship is merely an independent opinion that should be relieved in accordance with the legal principles for return

3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Chocheon-sung (Presiding Justice)