회생절차가 담보권실행을 위한 경매절차에 미치는 영향- 대법원 2018.11.29. 선고 2017다286577 판결 -

Mortgage is a real right granted by way of security in which one is repaid secured debt from the exchange value of mortgaged real property, which is realized in an auction procedure, prior to any other creditors. A rehabilitation security right should exist on the property of a debtor at the time of the initiation of a rehabilitation procedure. Therefore, it is enough if a security right exists when a rehabilitation procedure is initiated. Even if the object is destroyed or transferred to a third party through an auction, etc., the mortgagee is treated as a rehabilitation mortgagee. And a rehabilitation mortgagee can participate in the rehabilitation procedure to exercise his or her security right. When a decision has been made to approve a rehabilitation plan, the debtor is discharged of his or her responsibility about all rehabilitation claims and rehabilitation security rights, with the exception of rights recognized by the rehabilitation plan, and all security rights on his or her property disappear. Therefore, if a rehabilitation mortgagee reports none of his or her rights and the rehabilitation plan does not contain them, the security right of the rehabilitation mortgagee will disappear and the debtor will be discharged of his or her responsibility about rehabilitation claims, which are security debt. When a decision has been made to initiate a rehabilitation procedure, the compulsory execution based on rehabilitation security rights is banned and the compulsory execution based on exercised security rights about the debtor’s property is stopped. The exaction of real property is stopped when proceeds from sale are given or distributed to creditors. Therefore, if an auction procedure about the debtor’s property is underway and the real property is sold and the proceeds from the sale are paid, but a rehabilitation procedure is initiated before the distribution of the proceeds is finished, the execution process is stopped. As such, a stopped compulsory execution and an auction procedure for the execution of security right lose their effect when a decision has been made to approve a rehabilitation plan. Based on this legal principle, the Supreme Court’s ruling (No. 2017DA286577, Nov. 29, 2018) is valid that if a mortgagee who did not report his or her rehabilitation security right, collateralized through mortgage, in a rehabilitation procedure receives dividends after the approval of a rehabilitation plan when a debtor’s real property is sold in an auction procedure and the buyer pays the sale price and the mortgage on the sold real property disappears but a decision has been made to initiate the debtor’s rehabilitation process before the distribution procedure begins, the mortgagee is legally seen as being unjustly enriched.