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대법원 2015. 10. 29. 선고 2015다202490 판결

[배당이의][공2015하,1787]

Main Issues

In a case where the selected party has been selected in the distribution procedure, the other party against the distribution schedule (=appointed party) / In a case where an obligor or other creditor raises an objection against the designated party selected in the distribution procedure against the entire amount entered as a dividend, whether the appointed party may seek rectification of the entire amount entered as dividend, including the portion attributable to the designated party by filing a lawsuit of demurrer against distribution with the Defendant (affirmative in principle)

Summary of Judgment

An objection against a distribution schedule shall be raised against creditors stated in the distribution schedule. However, if a party to a distribution is selected in the distribution procedure, only the designated party who is not the designated party is the other party to the objection against the distribution schedule.

In addition, in a case where a debtor or other creditor raises an objection against the designated party against the total amount stated as being distributed, the joint interest between the designated party and the designated party is not extinguished. Thus, barring special circumstances such as the cancellation of the selection act against the court of execution or the death of the designated party, the designated party, who is not the appointed party, shall be qualified as the defendant in a lawsuit of demurrer against distribution as a creditor who has become the other party to the objection against the distribution schedule.

Therefore, barring such special circumstances as above, a debtor or other creditor who has raised an objection against the designated party against the total amount stated as being distributed to him/her may file a lawsuit of demurrer against distribution with the designated party as the defendant and seek correction of the total amount stated as being distributed to the designated party, including the portion to be reverted to the designated party.

[Reference Provisions]

Articles 151 and 154 of the Civil Execution Act

Plaintiff-Appellee

Korea Technology Credit Guarantee Fund (Law Firm Rotex, Attorneys Cho Han-soo et al., Counsel for the defendant-appellant)

Defendant-Appellant

Defendant (Law Firm Shin, Attorneys Cheong Young-soo et al., Counsel for the defendant-appellant)

Judgment of the lower court

Daegu District Court Decision 2014Na303370 Decided December 17, 2014

Text

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

Reasons

The grounds of appeal are examined.

1. An objection against a distribution schedule must be raised against creditors stating that the said distribution schedule was received as dividends. If the selected parties are selected in the distribution procedure, only the designated parties who are not the designated parties are the parties to the distribution schedule. Thus, only the designated parties are the parties to the objection against the distribution schedule.

In addition, in a case where a debtor or other creditor raises an objection against the designated party against the total amount stated as being distributed, the joint interest between the designated party and the designated party is not extinguished. Thus, barring special circumstances such as the cancellation of the selection act against the court of execution or the death of the designated party, the designated party, who is not the appointed party, shall be qualified as the defendant in a lawsuit of demurrer against distribution as a creditor who has become the other party to the objection against the distribution schedule.

Therefore, barring such special circumstances as above, a debtor or other creditor who has raised an objection against the designated party against the total amount stated as being distributed to him/her may file a lawsuit of demurrer against distribution with the designated party as the defendant and seek correction of the total amount stated as being distributed to the designated party, including the portion to be reverted to the designated party.

2. After recognizing the facts as indicated in its reasoning, the lower court determined that the Plaintiff, who raised an objection against the Defendant solely against the Defendant, against the Defendant, who is in the position of creditor of the distribution procedure of the instant case, on the entire amount stated in the distribution schedule, could seek correction of the entire amount.

Such determination by the lower court is justifiable in that it is based on the legal doctrine as seen earlier, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the scope of claims in a lawsuit of demurrer against

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)