Therefore, a creditor who is legally entitled to receive payment from the deposit can make a claim for distribution of the dividend amount to himself/herself by correcting the portion of the dividend amount against the executory creditor, which cannot be the dividend foundation, as a result of a lawsuit of demurrer against distribution.

However, in this case, with respect to the legitimate portion of the distribution foundation due to a deposit for enforcement, there is no impact on the order of execution distribution stipulated in the previous distribution schedule, unless there is any ground for objection to the distribution. Therefore, the amount of distribution should be maintained to the extent that a creditor’s claim is prior to or at least than another executor’s creditor’s claim under the distribution schedule, and even if the distribution was not erroneously made due to the said order, the amount of distribution still could have been paid as dividends.

1. In the case of so-called mixed deposits made by mixing the deposit for execution and the deposit for repayment under the Civil Act, and if there is any dispute over the amount to be paid or repaid under the distribution schedule with the creditors, it is reasonable to settle the dispute at once in accordance with the single procedure, called a lawsuit of demurrer against distribution. Therefore, a person claiming that the deposit was not paid or repaid despite the rights to be paid, may file a lawsuit of demurrer against distribution against the other creditors indicated as being paid or repaid in the distribution schedule.

Therefore, a creditor who is legally entitled to receive payment from the deposit may, through a lawsuit of demurrer against distribution, request a creditor who is entitled to receive payment from the deposit to make a correction of the portion that is equivalent to the deposit for repayment among the amount distributed to the executory creditor, which cannot be the dividend foundation, and then distribute it to himself (see Supreme Court Decision 2005Da28747, Feb. 9, 2006, etc.

However, in this case, with respect to the legitimate portion of the distribution foundation due to a deposit for enforcement, there is no impact on the order of execution distribution stipulated in the previous distribution schedule, unless there is any ground for objection to the distribution. Therefore, the amount of distribution should be maintained to the extent that a creditor’s claim is prior to or at least than another executor’s creditor’s claim under the distribution schedule, and even if the distribution was not erroneously made, the amount of distribution may still be distributed. Ultimately, the revision of the distribution schedule is allowed

2. According to the reasoning of the lower judgment and the evidence duly admitted, the following facts are revealed.

A. On April 30, 2009, Jeju Special Self-Governing Province (hereinafter “Seoul Special Self-Governing Province”) gave a contract for the construction of field schools and for the construction of gymnasium repair work (hereinafter “instant construction work”) from May 4, 2009 to September 1, 2009, with the construction cost of KRW 419,103,070, and paid KRW 209, May 19, 2009 as advance.

B. On June 26, 2009, Co-Defendant 1 of the lower judgment (hereinafter “Co-Defendant 1”) received a provisional attachment order of the claim amounting to KRW 287,416,438 from the Jeju District Court to KRW 287,416,438, and the above decision was served on Jeju-do on the 30th day of the same month. Thereafter, Co-Defendant 1 received a provisional attachment and collection order of the claim amounting to KRW 282,805,479, out of the claims amounting to KRW 282,805,479, which was provisionally seized as above, and the above order was served on Jeju-do on February 3, 2010.

C. On August 16, 2009, Ilsung Construction Co., Ltd. entered into an agreement on direct payment of subcontract consideration with the plaintiffs while granting a subcontract to the plaintiff Kusung Construction Co., Ltd., the plaintiff Hosung Construction Co., Ltd., and the painting Construction Co., Ltd. on September 15, 2009. On September 15, 2009, the above direct payment agreement was attached with the above direct payment agreement and notified the fact of the subcontract to Jeju-do. Of the subcontract cost, the total labor cost of the subcontracted work is KRW 39,737,90 (=10,010,000 + + + KRW 9,707,900 + KRW 20,000).

D. On February 9, 2010, Jeju-do deposited the deposited amount of KRW 126,918,450 as Jeju District Court Decision 201Da209 decided February 9, 2010, on the following grounds: (a) the deposited amount shall be the Plaintiffs, SamDa Industrial Development Co., Ltd., Mancheon Construction Co., Ltd., and the new company; and (b) the deposit cause shall be a factual or legal question as to the validity between the aforementioned provisional attachment, etc. on the claim for the construction price and the right to claim direct payment of the subcontract amount

E. On May 14, 2010 of the distribution procedure of Jeju District Court 2010ta-Ma65, the distribution schedule was prepared to distribute each of the money recorded in the table â………………§ 2010 to the creditors including the defendant on the distribution date.

Defendant 1,139,50 1,139,50 14,50 14,516,040 2 National Pension Service as well as 14,516,040 3 co-defendant 1282,805,479,760,595 3 co-defendant 27,020,000 1,483,420 provisional seizures 32,675,3426,904,739,739,1348,1343 co-defendant 62,310,000 co-defendant 150,000,4715,1371,257,941,257,941,97,971,957, 32, 32, 32, 349, 300,000 co-defendant 15,000,00

3. Examining these facts in light of the aforementioned legal principles and the reasoning of the lower judgment, among the contract amount of construction works prohibited from seizure pursuant to Article 88 of the Framework Act on the Construction Industry and Article 84 of the Enforcement Decree of the same Act, among the deposits made by Jeju-do, a third debtor, the seizure of the Plaintiffs’ labor expense claims amounting to the wages to be paid to the employees of the relevant construction work shall be null and void. The portion cannot be the distribution foundation, and the Defendant’s other enforcement creditors, including the Defendant, should not be paid dividends to the Plaintiffs prior to the claims of the National Pension Service or other enforcement creditors pursuant to Article 35 of the Framework Act on National Taxes. However, the Defendant’s claims were distributed first to the National Pension Service or other enforcement creditors’ claims prior to the amount of national tax claims, and thus, should be appropriated to the Plaintiffs’ dividends, only if insufficient, the Defendant’s claim for correction against the execution creditors other than the Defendant’s dividends should not be accepted, and thus, the Defendant’s distribution claim against the above Defendant’s dividends still cannot be accepted.

4. Nevertheless, the lower court determined otherwise, solely on the ground that the aggregate amount of the Plaintiffs’ labor expense claims is superior to those of the Defendant, who are enforcement creditors, and the co-defendants of the lower court, thereby treating the Defendant as identical to the co-defendants of the lower court, and absorbing the amount in proportion to the amount distributed to the Defendant in proportion to their dividends, thereby correcting the amount of KRW 1,139,50 as KRW 78

Therefore, in so determining, the lower court erred by misapprehending the legal doctrine on the objection to distribution and dividend order, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the Defendant regarding the conjunctive claim among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)