A. On September 7, 2002, the appellant (designated parties; hereinafter referred to as the "appellant") filed an application with the court of the first instance for the attachment and special exchange order with some of 30,000,000 won out of 533,194,950 won, based on the executory order of wage payment in the Gwangju District Court case, as the executory order of the payment order. On September 10, 2002, the court of the first instance issued an order to seize the contact membership rights and the special exchange order with the executory order. On September 10, 2002, the court of the first instance accepted the appeal by the appellant’s application and ordered the garnishee, the debtor, the department department of the Busan District Court (hereinafter referred to as the "debtor") against the Korea National Land Development Co.,, Ltd. (hereinafter referred to as the "third debtor"), which the condominium membership rights (number 3985 AC 101, 29136C 15, 2915).

B. After the declaration of bankruptcy against the debtor on September 9, 2003, when the realization procedure for the above contact membership rights was in progress upon the creditor's request, the debtor's bankruptcy trustee filed an application for revocation of execution with the court of first instance on April 9, 2004. On April 22, 2004, the court of first instance rendered a decision to revoke the execution of seizure on the claim stated in the separate sheet on December 6, 2002 (hereinafter "decision to revoke the execution of this case") on the ground that the compulsory execution already implemented under Article 61 (1) of the Bankruptcy Act has lost its effect (hereinafter "decision to revoke the execution of this case").

2. Summary of grounds for appeal;

The right of condominium membership in this case was purchased by the debtor and the debtor's trade union for the promotion of workers' welfare with the welfare amount created by withdrawing some of the labor increase in wages and half of bonus in the wage negotiation in 1988, and the ownership in the collective agreement is the company and the right of management should be held by the trade union. In light of the above awareness of purchase, the decision of revocation of execution of this case should be revoked because it is unfair.

3. Determination

A. We examine ex officio the first instance court's decision to revoke the execution of this case on the ground that the compulsory execution already implemented pursuant to Article 61 (1) of the Bankruptcy Act has become void because the court declared the debtor bankrupt, but Article 61 (1) of the above Act provides that compulsory execution, provisional seizure, or provisional disposition against the property belonging to the bankrupt estate based on the bankruptcy claim shall lose its effect against the bankrupt estate. Thus, with respect to compulsory execution based on the estate claim, the above provision is not applicable directly to the bankrupt estate. Thus, it is clear that the appellant's claim is a wage claim against the bankrupt (Article 38 subparagraph 10 of the Bankruptcy Act) and it is deemed that it is an estate claim (Article 38 subparagraph 10 of the Bankruptcy Act). The first instance court's decision to revoke the execution of this case by applying Article 61 (1) of the Bankruptcy Act to the compulsory execution of wage claim which is the estate claim is erroneous in the application of the law.

However, the Bankruptcy Act grants the trustee in bankruptcy the authority to manage and dispose of the bankrupt estate to realize the fair satisfaction of all creditors (Article 7 of the Bankruptcy Act) so that the trustee in bankruptcy can act as a central organ of the bankruptcy procedure. With respect to the estate claims including the allowances, retirement allowances, etc. of employees of the bankrupt (hereinafter “wages claims”), the trustee in bankruptcy shall, without resorting to the bankruptcy procedure, repay the total amount of the above estate claims in preference to the general bankruptcy claims. When it becomes clear that the bankruptcy estate is insufficient to repay the total amount of the above estate claims, the repayment of each estate claims shall be distributed in proportion to the amount of the non-paid estate claims (Articles 38, 40, and 42 of the Bankruptcy Act) in certain cases, the Bankruptcy Act provides that the repayment of each estate claims shall be made equally according to the ratio of the non-paid estate claims (Article 38, and Articles 40 through 42 of the Bankruptcy Act), notwithstanding the preferential rights of wage claims, and any estate creditor who is not proved to the trustee in bankruptcy before the notice of the dividend rate or dividend amount shall not be paid dividends (Article 258

Meanwhile, in a case where a compulsory execution against the property that belongs to the bankrupt estate is acknowledged based on the estate claim, the application of Articles 42 and 258 of the Bankruptcy Act providing for the equal repayment of the estate claim is difficult by any specific estate creditor to obtain satisfaction through compulsory execution or by seizing money that should be distributed to the bankruptcy creditor, resulting in in an inequal repayment, and the preferential repayment among the estate claims may be impossible. In light of the nature of such bankruptcy procedure, the status and authority of the bankruptcy trustee, and the various provisions of the Bankruptcy Act concerning the repayment of the estate claim, the Bankruptcy Act is expected to expect that the bankruptcy trustee should make appropriate and prompt repayment by reasonable judgment in line with the progress of bankruptcy proceedings. Accordingly, the repayment of the estate claim should be made by the judgment of the bankruptcy trustee, and it shall be deemed that compulsory execution is not recognized. Furthermore, in light of Article 62 of the Bankruptcy Act, it is reasonable to view that compulsory execution against the estate claim that may be collected pursuant to the National Tax Collection Act or the National Tax Collection Act among the estate claims (hereinafter “tax claim”), even after the bankruptcy is invalidated before the bankruptcy is declared.

Therefore, as seen earlier in the instant case, as bankruptcy is declared against the debtor, the execution of seizure executed by the original copy of the decision of the seizure order of this case has become null and void.

B. In light of the circumstances leading up to the purchase of the instant condominium membership rights, the appellant filed an application for the attachment and special exchange order of this case on the premise that the appellant belongs to the obligor. Even if the appellant asserts that the circumstances leading up to the purchase of the instant condominium membership rights belong to the obligor, such reasons alone cannot be a legitimate ground for appeal against the decision to revoke the execution of this case. In light of the circumstances leading up to the purchase of the instant condominium membership rights, the appellant’s claim is interpreted to the purport that the compulsory execution of this case conducted by the appellant does not lose its validity by the declaration of bankruptcy, since the appellant has a similar right to separate settlement under the Bankruptcy Act, in light of the circumstances leading up to the purchase of the instant condominium membership rights, the appellant cannot be deemed to have a preferential right to payment as to the instant condominium membership rights. Therefore, the appellant’s above assertion is without merit.

C. Ultimately, the execution of a seizure by the original copy of the order of seizure of this case is deemed to have already lost its validity even without a separate decision of revocation, or the decision of revocation of execution of this case by the court of the first instance, which was made to eliminate the appearance of the execution disposition and clarify the procedure, is justifiable in its conclusion.

4. Conclusion

Thus, the appellant's appeal of this case is dismissed as there is no ground.

Judges Cho Jae-sung (Presiding Judge)