[항소][각공2003.12.10.(4),656]
Whether a claim with a maritime lien takes precedence over a claim with a preferential right to payment (negative), and whether a distribution schedule prepared to distribute a claim with a maritime lien and a claim with a preferential right to payment to the same order is unlawful (negative)
Although maritime lien needs to provide a certain security to maritime creditors in consideration of risks accompanied by maritime enterprises, and the system is recognized in the demand for special protection of maritime creditors whose scope of exercise is limited compared to those of the land creditors due to the limitation of liability of the shipowner, the right to preferential payment concerning wage claims is recognized under the sacrifice of the general secured creditors, etc. in consideration of the social policy to ensure the minimum standard of living for workers, especially in cases where the employer goes bankrupt or the employer’s property is seized by other creditors. Thus, even if the subject and protection of the maritime lien are difficult to give priority to simply comparison of the wage claims with other maritime lien claims, if considering the legislative purport of the above, it cannot be determined that the priority should be given to the wage claims with the preferential right to payment. However, under the provisions of Article 861(2) of the Commercial Act and Article 37(2) of the Labor Standards Act, the right to preferential payment concerning maritime lien claims should be paid in preference to all other claims, and the legislative purport of the above provision or the principle of good faith should not be interpreted as unlawful.
Article 861(1)4 of the Commercial Act; Article 37(2) of the Labor Standards Act; Article 2 of the Civil Act
New Eshping Co., Ltd. (Law Firm Kim Shin & World Co., Ltd., Counsel for the plaintiff-appellant-appellant)
Sycho-young
Domini (Law Firm Cheonghae, Attorney Park Jong-young, Counsel for the plaintiff-appellant)
Seoul High Court Decision 200Na1448 decided May 1, 200
August 20, 2003
1. All of the plaintiff's claims are dismissed.
2. All the costs of lawsuit shall be borne by the plaintiff.
Busan District Court Decision 2001No. 21396 Decided June 12, 2002, regarding the case of a vessel auction, the dividends against the plaintiff in the distribution schedule prepared by the above court on June 12, 2002 shall be corrected to 309,186,372 won, and each dividend against the defendants shall be corrected to 0 won.
1. Basic facts
The following facts may be acknowledged without dispute between the parties, or by integrating the whole purport of the pleadings in the statement No. A1.
A. The plaintiff filed an application for the auction of the above Chapter 8 subparagraph on the ground that the damage claim caused by the above accident constituted a maritime lien under Article 861 (1) 4 of the Commercial Act, since Chapter 8 subparagraph 8 subparagraph 8 of the baselines owned by the plaintiff, the plaintiff's request for auction of the above Chapter 8 subparagraph 8 subparagraph was made in accordance with the auction procedure of the above Chapter 21396 of the Busan District Court around 2001, on the ground that the plaintiff's request for auction of the vessel under the above Chapter 8 subparagraph 8 subparagraph 8 subparagraph 8 subparagraph 8 was due to the collision with the plaintiff's vessel rushes, and the damage claim caused by the above accident falls under the maritime lien under Article 861 (1) 4 of the Commercial Act (Provided, That the plaintiff's request for auction was
B. During the procedure for the auction of the vessel under the above Chapter 8, the Defendant (Appointed Party) and the Defendant (Appointed Party) demanded distribution on the ground that the designated parties indicated in the attached list (not the crew) fall under the priority wage obligee under Article 37(2) of the Labor Standards Act. Meanwhile, the Defendant Kim Seocho also made a demand for distribution on the ground that his accident compensation claim falls under the preferential payment claim under Article 37(2) of the Labor Standards Act.
C. On June 12, 2002, the Busan District Court deemed both the Plaintiff and the Defendants to be the same second-class creditor (the above court deemed to be the chief of Busan Regional Maritime Affairs and Fisheries Office which claimed execution expenses, such as the contact fee and the guard preservation expense, and to be the first-class creditor). Of the amount claimed to the Plaintiff, KRW 262,904,309 out of the amount claimed to the Plaintiff, KRW 262,904,309 out of the amount claimed to the Plaintiff, KRW 420,902,537 out of the amount claimed to demand distribution, KRW 19,412,599 out of the amount claimed to the Defendant and KRW 286,539,162 out of the amount claimed to demand distribution, KRW 13,469,866 out of the amount claimed to the Defendant Kim Jong-soo.
D. Accordingly, the Plaintiff raised an objection to the said distribution schedule and filed a lawsuit of demurrer against the distribution of this case.
2. Judgment on the plaintiff's claim
There is no dispute between the parties as to the fact that the Plaintiff’s claim is a claim with a maritime lien under Article 861(1)4 of the Commercial Act, and that the Defendants’ claim is a wage or accident compensation (hereinafter “priority wage claim”) that should be paid with priority under Article 37(2) of the Labor Standards Act.
However, the plaintiff asserts that the maritime lien is a statutory security that is recognized to have limited to a specific claim arising in relation to the ship in question, and that the priority wage claim under Article 37(2) of the Labor Standards Act should be considered to take precedence over the priority wage claim under Article 37(2) of the Labor Standards Act.
In light of the above legislative purport, the maritime lien needs to provide a reliable security to maritime creditors in consideration of the risks accompanying the maritime company, as well as the system recognized in the demand for special protection of maritime creditors whose scope of exercise is limited compared to the maritime creditors due to the limitation of liability of the shipowner. However, the wage priority claim is a system recognized under the sacrifice of the general secured right holder, etc. in consideration of the social policy to ensure the stability of workers, especially in the event the employer goes bankrupt or the employer’s property is seized by another creditor. Thus, even if the subject and protection purpose of the maritime lien are difficult to simply compare the claims with those of other maritime lien and the priority wage claims, if the above legislative purport of the maritime lien is considered, it cannot be determined that the maritime lien claim should take precedence over the priority wage claims, and rather, there is no need to protect the priority wage claims.
However, according to the provisions of Article 861(2) of the Commercial Act and Article 37(2) of the Labor Standards Act, claims with maritime lien and priority wage claims shall be paid in preference to other claims. In light of the above purport of recognition and legislative intent, and the form of the above provision, etc., if interpreting the distribution schedule prepared to distribute claims with maritime lien and priority wage claims in the same order, it cannot be deemed that the distribution schedule was unlawful or unreasonable, thereby violating the ordinary transaction concept or the good faith principle.
Therefore, the plaintiff's assertion that the claims with maritime lien should be protected more than the priority wage claim and distributed in priority is without merit.
3. Conclusion
Therefore, the plaintiff's claim of this case is without merit and it is so decided as per Disposition.
Judges Kim Shin (Presiding Judge)