Open Decision Ledger · Civil procedure & enforcement
Secured claim fixed when the auction price is paid
Supreme Court, Sept. 25, 2025, 2025Da212005 (judgment)
Case name: 배당이의
Official text on the National Law Information Center
Question
Where a property subject to a mortgage is sold at auction opened on the application of a person other than the mortgagee, when is the secured claim fixed, and does the same apply where a pledge over the mortgagee's claim has been registered by sub-registration and the auction is opened on the application of a person other than that pledgee?
Holding
It is fixed when the mortgage is extinguished, that is, when the purchaser pays the auction price. The same applies where, after sub-registration of a pledge over that mortgage, the auction is opened on the application of someone other than the pledgee: the pledge's secured claim is fixed when the purchaser pays the price, so all loans made up to that payment fall within it, not only the loan of 27 March 2019 but also later loans, even those made before the auction began. The pledgee may not take more than the maximum amount secured by the mortgage, and may only satisfy its claim out of what the mortgagee could actually receive.
Summary of the holding, verbatim
근저당권이 설정된 부동산에 관하여 해당 근저당권자가 아닌 제3자가 경매를 신청한 경우 근저당권의 피담보채권은 그 근저당권이 소멸하는 때, 즉 매수인이 매각대금을 지급한 때에 확정된다.
Unofficial English translation
Where a third party other than the relevant holder of a maximum amount mortgage files for an auction in respect of real property on which a maximum amount mortgage is established, the secured claim under the maximum amount mortgage becomes fixed at the time the maximum amount mortgage is extinguished, that is, at the time the purchaser pays the purchase price.
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 피고 패소 부분을 파기하고, 이 부분 사건을 수원지방법원에 환송한다.
Unofficial English translation
The part of the judgment of the court below finding against the defendant is reversed, and the case as to this part is remanded to the Suwon District Court.
Form of the test
Elements stated Stated in the decision
근저당권이 설정된 부동산에 관하여 해당 근저당권자가 아닌 제3자가 경매를 신청한 경우 근저당권의 피담보채권은 그 근저당권이 소멸하는 때, 즉 매수인이 매각대금을 지급한 때에 확정된다
Unofficial English translation
Where a third party other than the relevant holder of a maximum amount mortgage files for an auction in respect of real property on which a maximum amount mortgage is established, the secured claim under the maximum amount mortgage becomes fixed at the time the maximum amount mortgage is extinguished, that is, at the time the purchaser pays the purchase price
Factors
- 근저당권이 설정된 부동산에 관하여 해당 근저당권자가 아닌 제3자가 경매를 신청한 경우
- 근저당권의 피담보채권은 그 근저당권이 소멸하는 때, 즉 매수인이 매각대금을 지급한 때에 확정된다
- 근저당권에 대한 근질권의 부기등기가 마쳐진 후
- 해당 근질권자가 아닌 제3자의 신청에 따라 경매절차가 개시된 경우에도 마찬가지이므로
Unofficial English translation
• Where a third party other than the relevant holder of a maximum amount mortgage files for an auction in respect of real property on which a maximum amount mortgage is established
• the secured claim under the maximum amount mortgage becomes fixed at the time the maximum amount mortgage is extinguished, that is, at the time the purchaser pays the purchase price
• after a marginal registration of a maximum amount pledge in respect of the maximum amount mortgage has been made
• the same holds true where auction proceedings are commenced upon the application of a third party other than the relevant holder of the maximum amount pledge
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1999. 9. 21. 선고 99다26085 판결(공1999하, 2200)
Unofficial English translation
Supreme Court Decision 99Da26085 decided September 21, 1999 (Gong 1999 Ha, 2200)
Decisions referred to
대법원 1999. 9. 21. 선고 99다26085 판결(공1999하, 2200)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If a pledgee over a claim secured by a mortgage applies for the auction itself, is its secured claim also fixed only when the purchaser pays the auction price?
The remand judgment of the Suwon District Court, once it recalculates the pledgee's secured claim up to payment of the price, will show how the rule works on the amounts. A later decision on a pledgee's own auction application, or an amendment to Article 357(1) or Article 348 of the Civil Act, would call for this entry to be read again.
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8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-24
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on all 8 axes.
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Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Suwon District Court, in its judgment of 16 April 2025 (2023Na103472), held that where a pledgee over a claim secured by a mortgage applies for auction itself or consents to the mortgagee's application, that moment becomes the pledge's settlement date, so the pledge's secured claim is fixed at the debts accrued by then and later principal is excluded. On that basis it fixed the claim at the KRW 320 million loan of 29 March 2019 plus overdue interest of KRW 1,142,857, totalling KRW 321,142,857.
Supreme Court standard: The Supreme Court held that this could not be accepted. The defendant did not apply for the auction itself: the procedure was opened on the application of the mortgagee, so even the defendant's written consent to the auction did not fix the secured claim at that point. The claim was fixed when the purchaser paid the price, so the loan of 27 March 2019 and the later loans made up to that payment had to be included, subject to the maximum amount secured. The court below had failed to examine what it needed to, had violated the rules of logic and experience and exceeded the limits of free evaluation, or had misread the law on when the claim is fixed, and the defect affected the judgment.
Distinguishing conditions
- A case in which the pledgee itself applied for the auction, since the rule stated is for an auction opened on a third party's application.
- A case in which the pledge was never registered by sub-registration against the mortgage, since the extension was stated for a pledge registered afterwards.
- A case in which the pledgee's claim exceeds the maximum amount secured by the mortgage, or exceeds what the mortgagee was actually paid, since the pledgee's satisfaction is capped by both.
Record verification notes
Identify who applied for the auction and when the auction began, and set against the date the purchaser paid the auction price every loan the pledgee relies on, since all loans up to payment count. Then match the pledge's maximum amount secured with what the mortgagee was actually paid, because the pledgee cannot exceed either. Finally confirm the date the purchaser paid the auction price, which fixes the claim on this decision's own terms.
From the official text
Points at issue
근저당권이 설정된 부동산에 관하여 해당 근저당권자가 아닌 제3자가 경매를 신청한 경우, 근저당권의 피담보채권이 확정되는 시기(=매수인이 매각대금을 지급한 때) 및 이는 근저당권에 대한 근질권의 부기등기가 마쳐진 후 그 부동산에 관하여 해당 근질권자가 아닌 제3자의 신청에 따라 경매절차가 개시된 경우에도 마찬가지인지 여부(적극)
Unofficial English translation
Where a third party other than the relevant holder of a maximum amount mortgage files for an auction in respect of real property on which a maximum amount mortgage is established, the time at which the secured claim under the maximum amount mortgage becomes fixed (= the time at which the purchaser pays the purchase price), and whether the same holds true where, after a marginal registration of a maximum amount pledge in respect of the maximum amount mortgage has been made, auction proceedings are commenced in respect of that real property upon the application of a third party other than the relevant holder of the maximum amount pledge (affirmative)
Summary of the holding
근저당권이 설정된 부동산에 관하여 해당 근저당권자가 아닌 제3자가 경매를 신청한 경우 근저당권의 피담보채권은 그 근저당권이 소멸하는 때, 즉 매수인이 매각대금을 지급한 때에 확정된다. 이러한 법리는 근저당권에 대한 근질권의 부기등기가 마쳐진 후 그 부동산에 관하여 해당 근질권자가 아닌 제3자의 신청에 따라 경매절차가 개시된 경우에도 마찬가지이므로, 근질권의 피담보채권은 그 근저당권이 소멸하는 때, 즉 매수인이 매각대금을 지급한 때에 확정된다고 보아야 한다.
Order
원심판결 중 피고 패소 부분을 파기하고, 이 부분 사건을 수원지방법원에 환송한다.
Unofficial English translation
The part of the judgment of the court below finding against the defendant is reversed, and the case as to this part is remanded to the Suwon District Court.
Provisions referred to
민법 제357조 제1항, 제348조
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