[배당이의][미간행]
The case affirming the judgment below holding that, in case where Gap received a seizure and collection order against Eul corporation's claims against Eul corporation based on Eul corporation's claims, Eul corporation's creditors, stated an objection against Eul's dividends in the distribution procedure, and filed a lawsuit of demurrer against distribution, Eul corporation, which is the creditor of Eul corporation in the distribution procedure, stated an objection against Eul's dividends, and the rehabilitation court decided to revoke Eul's compulsory execution to cancel Gap's seizure and collection order pursuant to Article 58 (5) of the Debtor Rehabilitation and Bankruptcy Act when rehabilitation procedures commenced against Eul corporation while the lawsuit of demurrer against distribution was in progress, and the additional distribution schedule was prepared to distribute Gap's dividends to Eul corporation in the distribution procedure opened thereafter, Gap stated an objection and filed a lawsuit of demurrer against distribution, Gap filed a lawsuit of demurrer against distribution, since Gap's seizure and collection order became retroactively effective in accordance with the revocation order of compulsory execution by the rehabilitation court, Gap lost the right to make an objection against the additional distribution schedule as the collection creditor of Eul corporation, and Gap's statement of objection against the additional distribution schedule in the distribution procedure is unlawful,
Article 58(5) of the Debtor Rehabilitation and Bankruptcy Act; Articles 151(3), 154(1), and 256 of the Civil Execution Act
Plaintiff (Law Firm Namsan, Attorneys Kim Jong-jin et al., Counsel for the plaintiff-appellant)
The bankruptcy trustee of the bankruptcy debtor, who is the non-party administrator of the rehabilitation debtor foreign corporation, is the bankruptcy trustee of the bankruptcy debtor foreign corporation
Seoul High Court Decision 2015Na2045091 decided May 13, 2016
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined.
1. Regarding ground of appeal No. 1
The lower court, citing the reasoning of the first instance judgment, determined as follows based on the circumstances indicated in its reasoning.
The Plaintiff was issued a seizure and collection order regarding the Plaintiff’s claim against Ecocon Construction Co., Ltd. (hereinafter “Treatment Construction”) on the basis of the claim against Ecocon (hereinafter “Ecocon”). Treatment Construction commenced the distribution procedure following deposit of the money to be paid to Ecocon on the grounds of concurrent seizure, etc. The creditors of Ecocon stated an objection against the Plaintiff’s dividends and filed a lawsuit of demurrer against the distribution. The rehabilitation procedure commenced against Ecocon during the lawsuit of demurrer against the distribution, and the rehabilitation court revoked the Plaintiff’s seizure and collection order pursuant to Article 58(5) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “DR”). Since the Plaintiff stated that the Plaintiff’s dividends deposited in the new distribution procedure were distributed to Ecocon and stated in the distribution order and stated in the lawsuit of demurrer against the Plaintiff’s objection to the distribution under Article 26(5) of the Debtor Rehabilitation and Bankruptcy Act, the rehabilitation court additionally invalidated the Plaintiff’s right to withdraw the distribution order, and thus, the Plaintiff did not have any effect in the rehabilitation court’s revocation of the distribution order against Eco.
Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the impact of the revocation of compulsory execution by the rehabilitation court on a lawsuit of demurrer against distribution.
2. Regarding ground of appeal No. 2
The lower court, based on its stated reasoning, did not recognize the Plaintiff’s claim for return of unjust enrichment against the Defendant.
Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine regarding the requirements for establishing a claim for return of unjust enrichment.
3. As to the third ground for appeal
The gist of the Plaintiff’s allegation in this part of the grounds of appeal is that the lower court’s determination otherwise deemed unlawful, which is the most recent creditor of Ecopia. However, this is ultimately erroneous in the selection of evidence or fact-finding, which belongs to the lower court’s exclusive authority, and thus, is not a legitimate ground of appeal.
4. Conclusion
Therefore, the appeal is 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.
Justices Jo Hee-de (Presiding Justice)