[배당이의][공2011상,423]
As the completion date of double seizure of corporeal movables, the meaning of “before they reach the date of sale” under Article 215(1) of the Civil Execution Act (=before they reach the date of sale actually sold)
Article 215(1) of the Civil Execution Act provides, “When any other compulsory execution is requested after the seizure or provisional seizure of corporeal movables and before the date of sale reaches the date of sale, an execution officer shall first deliver an application for execution to the execution officer who has seized them.” However, double seizure of corporeal movables is widely recognized as possible until the property subject to execution, such as the full payment of the sale price, the deposit or payment by the third obligor, etc., can escape from the debtor’s responsible property, regardless of the completion period to demand a distribution. In light of the fact that corporeal movables in the sale procedure are the principle of granting permission for purchase and payment of the sale price on the date of sale or bidding and paying the sale price on the date of sale and at the same time (Articles 149(1) and 151 of the Civil Execution Rule), the phrase “before the date of sale” in Article 215(1) of the Civil Execution Act refers to “before the date of sale that has been sold on the date of sale on the date of sale,” and it is not permissible until then double seizure until the expiration date of sale.
Articles 215(1) and 220(1) of the Civil Execution Act, Articles 149 and 151 of the Civil Execution Rule
Supreme Court Order 72Ma507 Decided June 21, 1972 (Gong1979, 11590) 78Ma285 Decided November 15, 1978
Future Mutual Savings Bank (Law Firm Boba, Attorneys Soh-ho et al., Counsel for the plaintiff-appellant)
Defendant 1 and five others (Attorney Lee Jae-soo et al., Counsel for the defendant-appellant)
Suwon District Court Decision 2009Na31076 decided August 24, 2010
All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.
The grounds of appeal are examined.
1. Regarding ground of appeal No. 1
Article 215(1) of the Civil Execution Act provides that “When another compulsory execution is requested after seizure or provisional seizure of corporeal movables and before the date of sale, an execution officer shall first deliver an application for execution to the execution officer who has seized them.” The double seizure of real estate and claims is widely recognized that the property subject to execution, such as the payment of the proceeds from sale in full, the deposit or payment of the third obligor, can escape from the debtor’s responsible property without regard to the completion period for demand for distribution (see, e.g., Supreme Court Order 72Ma507, Jun. 21, 1972; Supreme Court Order 78Ma285, Nov. 15, 1978; Supreme Court Decision 78Ma285, Nov. 15, 1978; Supreme Court Decision 2000Da151020, supra. In light of the above legal principle and Article 215(1) of the Civil Execution Act, it is unreasonable to view that the dual seizure on the date of sale is permissible until the date of sale.”
In the same purport, the court below is justified in rejecting the plaintiff's assertion that the defendants' application for compulsory execution of this case was made after the first sale date, which is the limitation of double seizure, and there is no error of law by misunderstanding the legal principles as to the termination period of double seizure under Article 215 (1) of the Civil Execution Act, which affected the conclusion of the judgment, contrary to the allegations
2. Regarding ground of appeal No. 2
The court below rejected the plaintiff's claim against the above defendant on the ground that it is reasonable to view that the submitted evidence alone is insufficient to recognize the fact that the defendant 2 is a false creditor, and rather, according to the facts as stated in its decision that the defendant 2 has a claim for the settlement of accounts against one set.
In light of the relevant legal principles and records, the above measures of the court below are correct, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles regarding the burden of proof in a lawsuit of demurrer against distribution, or violating the principle of free evaluation of evidence.
3. Conclusion
Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Cha Han-sung (Presiding Justice)