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대구고법 1978. 1. 18. 선고 76나1250 제2민사부판결 : 상고

[우선특권부인청구사건][고집1978민,8]

Main Issues

Whether the filing of a lawsuit seeking the confirmation of the existence of a lien on a ship by a creditor of the lien on the ship against the debtor, and that the claim has a lien on the ship becomes a cause for interruption of the extinctive prescription of the lien.

Summary of Judgment

Even if a creditor with a lien on a ship has filed a lawsuit claiming the performance of the claim against the debtor and the confirmation of the existence of a lien, he/she may be deemed a judicial claim by exercising his/her claim as such, but it cannot be deemed that the lien itself, which is a right to preferential repayment of his/her claim than other claims, has been exercised. Thus, it cannot be deemed a cause interrupting prescription of the lien.

[Reference Provisions]

Articles 861 and 870 of the Commercial Act, Article 170 of the Civil Act

Reference Cases

Supreme Court Decision 78Da315 delivered on June 13, 1978

Claimant, Appellant

Korea Exchange Bank

Respondent, appellant

Respondent 1 and 13 others

Judgment of the lower court

Busan District Court (75 Gohap1757)

Text

The respondent's appeal is dismissed.

Expenses for appeal shall be borne by the respondent.

Purport of application

The provisional disposition order issued by the same court on July 10, 1975 with respect to the case of provisional disposition prohibiting the receipt of subsidies between the claimant and the respondent in Busan District Court 75Ka4139 shall be approved. The litigation costs shall be borne by the respondent.

Purport of appeal

In the original judgment, the part against the respondent among the original judgment and the same provisional disposition order shall be revoked, and the applicant's objection against this part shall be dismissed. The costs of the lawsuit shall be borne by the applicant in both the first and second trials, and a provisional execution judgment

Reasons

On August 12, 1974, the applicant applied for a voluntary auction against the vessel of this case under Busan District Court 74No1491 on June 11, 1975. The respondent applied for a preliminary auction against the vessel of this case on June 10, 1975, for a preliminary auction of KRW 62,796,80 on the ground that the claim of this case was a maritime lien on the vessel of this case and the auction court applied for a preliminary auction of KRW 100,00,000,000 on July 10 of the same year, and the remaining 53,29,778,000,000, which was deducted from the auction price of the above auction on July 10 of the same year and applied for a provisional auction of this case to the plaintiff 2,05,000,000 won. The respondent did not have any dispute against the defendant 1,000,000,000 won.

First of all, if we gather the whole purport of the pleading as a result of the verification of the auction records of the court below (74l1491), the date of the occurrence of each claim by the person under consideration in the attached Table 2 is around July 1973 and around August 1973, and when the person under consideration in the attached Table 2 applies for the issuance of the successful bid price and claims the lien, it is apparent that one year has passed from the date of the occurrence of each claim, so the obligee's lien is extinguished by the completion of prescription under Article 870 (1) of the Commercial Act. However, according to the record verification of the court below, the defendants asserted that the prescription has been interrupted by exercising each of the above claims on July 13, 1974, Busan District Court 74Gahap10699, etc. However, according to the court below's record, it can be seen that the above claim by the defendants is justified by exercising the maritime lien against the non-party under consideration that the above claim has a maritime lien.

Therefore, each claim listed in the separate list No. 2 cannot be considered as maritime lienable claim, and the applicant has the right to receive preferential payment from the auction price of the ship. Since the need for preservation can be recognized by the whole purport of the pleading, the applicant's objection against the above provisional disposition decision on the claim listed in the separate list No. 2 is justified in conclusion, and the original judgment is just in conclusion, and it is so decided as per Disposition by applying Articles 384, 95, 89, and 93 of the Civil Procedure Act.

Judges fixed right (Presiding Judge) Dasung Kim Tae-tae