2. The costs of appeal shall be borne by the Plaintiff.

The following facts are not disputed between the parties, or may be recognized by comprehensively taking into account each description of Gap 1, 2, 4, Eul 1-7 (including paper numbers), and the whole purport of oral arguments.

(a) Qualified acceptance, etc.;

(1) On March 3, 2004 and May 15, 2006, Nonparty 1 completed the registration of creation of a mortgage on the real estate of this case as the owner of Pyeongtaek-si, Seosan-dong (hereinafter a parcel number 1 omitted) and the building on its ground, Dosan-dong (hereinafter a parcel number 2 omitted), 191 square meters, and Dosan-dong (hereinafter a parcel number 2 omitted), with respect to the establishment of a mortgage on the real estate of this case as the sum of the maximum debt amount of KRW 113.2 million.

On November 22, 2007, Nonparty 1 died, and Nonparty 2 and 3, who is the husband, were jointly inherited the legacy. On February 22, 2008, the deceased Nonparty 1’s co-inheritors, including the Plaintiff, etc. (hereinafter “the Deceased”) filed a request for a qualified acceptance on the Lanwon District Court No. 2008 Madan204, which was the Lanwon District Court, and the report of the qualified acceptance was accepted on March 3, 2008. On the list of property attached to the written request for a judgment, the list stated the claims of the provisional attachment authority and the claims of Nonparty 4,5,6,7, Defendant, and Nonparty 8.

On March 7, 2008, the heir of the plaintiff et al. announced the qualified acceptance notice to the effect that the heir of the plaintiff et al. reported the qualified acceptance and reported the amount of credit within two months. On April 18, 2008, the heir completed the registration of ownership transfer in the future, and received a decision to appoint the plaintiff as administrator of inherited property on May 8, 2008, Pyeongtaek Housing Site Board 2008 Gao364.

B. The defendant's claims

(1) From November 28, 2007 to January 14, 2008, the registration of provisional seizure against the deceased was completed with respect to the real estate of this case from November 28, 2007 to January 14, 2008 (the provisional seizure is effective only after the death of the deceased).

B. On April 17, 2008, the Defendant reported the amount of claim on the notice of qualified acceptance, and on July 8, 2008, the Defendant received a provisional attachment order of KRW 23,249,99 in the amount of claim on the real estate in this case as the Eunpyeong Housing Site Board No. 2008Kadan2145 on July 8, 2008, and completed the registration of the entry on July 10, 2008.

(1) On August 25, 2008, the defendant filed a principal lawsuit against the plaintiff et al.'s heir (2008Gau3087) and sentenced on February 11, 2009 and became final and conclusive at that time. Within the scope of the property inherited from the deceased, the plaintiff shall pay the amount calculated by the ratio of KRW 6,428,571, and the amount of KRW 4,285,714 as well as the amount of KRW 4,285,714 as to each of the above amounts from October 1, 2007 to the day of complete payment.

(c) Auction and dividends;

(1) On April 24, 2008, the Ministry of Agriculture, Forestry and Fisheries requested a voluntary auction of the instant real estate based on the foregoing right to collateral security, and the decision of commencement was made on April 24, 2008 and the entry registration was completed on the same day.

B. On July 11, 2008, the Defendant submitted a claim for distribution at the above auction procedure, and around that time, according to the purport of the above judgment, the Defendant submitted a claim statement of the total amount of KRW 19,842,739, and the Plaintiff also submitted a claim for the delivery of the proceeds of sale on December 18, 2008, and Nonparty 13, 14, and 15 of the lessee of the instant real estate.

On February 13, 2009, the enforcement court distributed KRW 118,252,164, which deducts the amount to be distributed to lessees and persons holding preferential rights of payment, to the Defendant who is the person holding provisional seizure rights, and prepared a distribution schedule that distributes the remainder of KRW 98,409,425 to the Plaintiff. The Plaintiff raised an objection to the amount of dividends of the Defendant and filed a lawsuit of demurrer to the distribution of this case within a lawful period (the provisional seizure of the remaining persons holding provisional seizure rights except the Defendant was excluded from the distribution of dividends as an invalid provisional seizure against the deceased).

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

The Plaintiff, as an administrator of inherited property, is liable for the equal repayment of inherited property to creditors reported among general inheritance creditors and creditors known to them. Therefore, it is unreasonable to distribute the total amount of demand for distribution to the Defendant, who is only one of the general inheritance creditors, to the Defendant, who is not a one of the general inheritance creditors, so the instant distribution schedule

(b) formal auction and voluntary auction;

(1) When an inheritor has made a qualified acceptance, he/she shall make a public notice to the general obligee within five days from the date of such a qualified acceptance that the obligee should report his/her claim within a specified period, and shall demand that the obligee known to him/her report his/her claim (Article 1032(1) and (2), and Article 89 of the Civil Act). The obligee who made the report and the obligee known to him/her within the period after the public notice period expires and the obligee known to him/her be repaid in proportion to the amount of claim (Article 1034(1),

B. The heir may, when it is necessary to sell all or part of the inherited property for the repayment of the inheritance obligation, apply for an auction pursuant to the Civil Execution Act (Article 1037 of the Civil Act). Unlike auction for the exercise of security right (hereinafter referred to as "voluntary auction") or compulsory auction, such formal auction is conducted for the purpose of price preservation or liquidation of specific property, and is conducted according to the example of voluntary auction procedure (Article 274(1) of the Civil Execution Act).

Article 274(2) and (3) of the Civil Procedure Act provides that if a voluntary auction procedure has been commenced on an object of which the procedure is in progress, the formal auction procedure shall be suspended, and if the procedure is revoked, the formal auction procedure shall continue (Article 274(2) and (3) of the Civil Procedure Act). Therefore, even in cases where not only the voluntary auction is conducted on an inherited property subject to a qualified acceptance, but also the formal auction and the voluntary auction are concurrent on an inherited property subject to a qualified acceptance, it shall proceed with the voluntary auction procedure, and it shall be paid to the creditors provided for in Article 148 of the Civil Procedure Act, like ordinary voluntary auction, according to the distribution order, and it shall not be made by taking into account the repayment procedure according to the qualified acceptance (Article 734(2) of the Civil Procedure Act, which was in force prior to the enactment of the Civil Execution Act on January 26, 2002, if the voluntary auction procedure has been initiated during the procedure to enforce a lien, it shall be suspended for the execution of the lien, and there was no provision as to any

C. Determination on the instant case

(1) As to the instant real estate, not the formal auction under the qualified acceptance, but the auction under the discretionary auction procedure was conducted, the executing court shall make a distribution in the same manner as the ordinary auction procedure in accordance with the aforementioned legal doctrine (in this case, the formal auction procedure is not initiated, and the conclusion is likewise the same even if the formal auction is concurrent).

D. Accordingly, inasmuch as the remaining amount after distributing to the persons with preferential rights to payment exceeds the defendant's claim amount, the court of execution distributes the total amount of the demand for distribution or the total amount of the claim to the defendant who is the person with the provisional seizure is a legitimate measure in accordance with

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed.

Judges Lee Sung-gu (Presiding Judge)