[배당이의 ][하집1996-1, 367]
In a case where the title, which is the application for demand for distribution, is not indicated or stamp is not attached to the claim statement, whether it can be viewed as a legitimate demand for distribution (affirmative)
For the purpose of Article 605(1) and (2) of the Civil Procedure Act, the term "reasons for demand for distribution" means a legal relationship by which a creditor may obtain reimbursement from the whole property of a debtor, and in the case of demand for distribution, it is sufficient if the creditor submits to an auction court a document specifying the cause and amount, etc. of the claim to the debtor, and the document clarifying the amount thereof, etc., which is sufficient to specify the cause and amount of the claim to the debtor. If the debtor, the creditor demanding for distribution and other claims for distribution have been submitted to the auction court prior to the successful bid date, it is reasonable to deem that he/she made a demand for distribution by lawful method. It shall not be deemed that the demand for distribution by legitimate method has not been made only on the account statement of the fact that he/she did
Article 605 of the Civil Procedure Act, Articles 121-3 and 148-3 of the Rules of Civil Procedure
Autrons
Kim Jong-chul
1. The plaintiff's claim is dismissed.
2. Litigation costs shall be borne by the plaintiff.
On March 9, 1996, in regard to the compulsory auction case of real estate No. 95 Kaju District Court 95 Kaju District Court 197, the distribution of the amount of KRW 85,293,450 to the Plaintiff among the distribution schedule prepared by the above court, and KRW 142,578,647 to the Defendant, respectively, shall be changed to distribute the amount of KRW 149,55,090 to the Plaintiff, and KRW 78,317,007 to the Defendant, respectively.
1. Basic facts
A Evidence 1 (Report on Compulsory Auction by Auction), evidence 2-1, 2-1, 73 (Report on Claim), 74 (Report on Tender), 75 (Report on Claim), 79 (Report on Claim), 89 (Report on Claim Payment), 10 (Report on Claim), 25 (Report on Provisional Attachment by Real Estate), 26 (Report on Claim), 28 (Report on Claim), 42 (Report on Provisional Attachment by Real Estate), 43 (Report on Contract for Construction Work), 44 (Report on Claim Establishment), 45 (Report on Claim Establishment), 46 (Report on Claim Establishment), 73 (Report on Claim), 74 (Report on Claim), 89 (Report on Claim), 90 (Report on Claim Payment), 90 (Report on Claim), 91 (Report on Claim Distribution), 96 (Report on Claim Distribution), 90 (Report on Claim Sale), 196 (Report on Claim Distribution), 190 (Report on Claim Sale), 10 (Report on Claim Sale)
A. On January 13, 1995, the Plaintiff filed an application for compulsory execution of real estate on the real estate listed in the separate sheet No. 1 attached to the Nonparty, owned by the said Nonparty (hereinafter simply referred to as “instant real estate”), with the Cheongju District Court’s Cheongju District Court’s Cheongju District Court on January 13, 1995 on the basis of the notarial deed for debt repayment (quasi-Loan for Consumption) with executory power over Kim Jong-J, and this court issued a decision to commence compulsory execution of the instant real estate as prescribed in No. 95 another 197 on the same day, thereby making the Cheongju District Court’s Cheongju District Court’s Maju District
B. On May 22, 1995, the Defendant concluded a mortgage contract with the interest rate of KRW 45,00,000 on loans that the Plaintiff would receive from the above Nonparty, and at the rate of KRW 25,00,000 per month on the construction cost of the instant real estate, and at the rate of KRW 123,00,000 on the construction cost of the instant real estate. On the 18th of the same month, the Defendant completed a mortgage registration with the above registry receipt No. 1176 on the instant real estate with the creditor, the debtor, the debtor Kim Sea, the maximum debt amount of KRW 180,00,00 on the instant real estate, and submitted a mortgage registration with the interest rate of KRW 170,200,00 on the instant real estate as a person after the registration of the commencement of auction on the instant real estate at the auction court from May 22, 195.
C. Meanwhile, as the court No. 95Kahap82, the non-party Kim Jong-su applied for provisional seizure of the real estate in this case on March 16, 1995 by making the claim amounting to KRW 70,000,000 for the purchase and sale of real estate against the non-party Kim Jong-su as the preserved right, and this court decided the provisional seizure of the real estate on March 16, 1995. The provisional seizure registration of the real estate in this case was completed on March 16, 1995 by the receipt of the above registry No. 6293 on March 16, 1995.
D. After that, on October 14, 1995, the real estate of this case was awarded to Nonparty 2,32,50,000 won to Nonparty 2, the auction court opened the date of distribution on March 9, 1996 and deducted the execution cost out of the total of KRW 233,528,90,90, the remainder of KRW 227,872,097, which was calculated by deducting the execution cost from the total of the successful bid price and interest for delay, etc., the auction court held on March 9, 1996, and distributed KRW 95,00,00 and interest thereon KRW 54,55,00,000, KRW 149,555,000 and KRW 20, KRW 265,000, KRW 25,000, KRW 360,000, KRW 25,000, KRW 965,000, KRW 205,000,0.
2. The plaintiff's assertion and judgment
A. Summary of the alleged facts
The plaintiff is the cause of the claim of this case and the legal relation, i.e., the right to receive repayment on the debtor's property by attaching a certain stamp, and clearly stating the type, details, amount, etc. of the claim, although the defendant is required to demand a distribution without satisfying the above requirements, it cannot be deemed that the defendant simply submitted only the statement of claim to the auction court without satisfying the above requirements, and it cannot be deemed to have made a demand for distribution. In addition, even if the defendant merely submitted the claim statement to the auction court, and it is deemed to have made a demand for distribution with only the act of submitting the claim statement to the auction court, the registration of the establishment of the security right cannot claim the right to preferential payment against the execution creditor due to the effect of the prohibition of disposal by the seizure, where the registration of the establishment of security right has been completed after the seizure becomes effective, and the defendant is not entitled to participate in the distribution unless it has gone through a separate provisional seizure, etc., where the secured right holder after the seizure continues to exist. Thus, the defendant asserts that the distribution schedule should be revised.
(b) Markets:
(1) First, we examine whether the defendant's demand for distribution does not have the validity of demand for distribution, since it is not a lawful method.
In the real estate auction procedure, the demand for distribution shall be made by reporting to the court, specifying the cause for the demand for distribution by the auction date (Article 605(1) and (2) of the Civil Procedure Act), and in this context, the cause for the demand for distribution refers to the legal relationship by which the creditor is able to obtain reimbursement from the whole property of the debtor. Therefore, in making the demand for distribution, it is sufficient when submitting to the auction court the document specifying the cause and amount of the claim against the debtor, and whether the document stating the amount of the claim, etc. is accompanied (Articles 148-3 and 121-3 of the Civil Procedure Rule).
However, according to the evidence Nos. 3-41 to 45 of the above mentioned above, the defendant did not attach 500 won stamp on May 20, 1995, which is prior to the date of the successful bid, and the defendant did not submit a claim statement which stated 170,200,000 won of the total amount of the construction contract and loan, and the amount of the loan, together with a copy of the construction contract, copy of the loan certificate, and a copy of the mortgage contract which is certified as completion of the establishment registration of a mortgage (the copy of the real estate register where the establishment registration of a mortgage was completed for the real estate in the name of the defendant was already submitted to the auction court) with a copy of the mortgage contract, a copy of the loan certificate, or a copy of the document which is certified as completion of the establishment registration of a mortgage in the Cheongju District Court's voice District Court's voice registry (the above copy of the real estate register is already submitted to the auction court's court's prior to the above auction date's rejection of the plaintiff's claim.
(2) Next, in case where the establishment of a security right has been registered after the seizure as alleged by the Plaintiff, the relevant security right holder is unable to demand a distribution.
Since it is reasonable to view that a person holding the right to collateral security established after the seizure also includes a creditor having a right to preferential payment under the Civil Act, the Commercial Act, or other Acts as stipulated in Article 605(1) of the Civil Procedure Act, it is reasonable to view that the right to collateral security established after the seizure includes a creditor having a right to preferential payment under the Civil Procedure Act, the Commercial Act, or other Acts, and thus, as a result of demanding a distribution by the time of the successful bid without going through a separate provisional seizure, the creditor who has prior to the execution creditor, but is not entitled to preferential payment, may receive a distribution equally in proportion to the amount of the claim with the execution creditor
3. Conclusion
Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.
Judges Min Il-young (Presiding Judge)