[배당이의][공2001.12.1.(143),2460]
Where the dividend was deposited on behalf of the mortgagee who was absent on the date of distribution, but it has been found that the secured obligation of the mortgage was extinguished thereafter, the method of handling such dividend (=additional dividend)
In case where there is an obvious reason that the deposited dividend has become extinct due to the repayment of the secured debt, etc. after the dividend was deposited on the date of distribution for the mortgagee who was absent on the date of distribution, it cannot be readily concluded that the distribution procedure has been completed definitely, and it is reasonable to additionally distribute dividends to other creditors by applying Article 597 of the Civil Procedure Act, which provides that the distribution procedure has been completed in a fixed manner, and that the payment of dividends to debtors who have not been satisfied with the fundamental purpose of obtaining the satisfaction of creditors from the debtor's property is obviously contrary to the purpose of the system.
Articles 589, 597, and 598 of the Civil Procedure Act
Supreme Court Decision 97Da56280 delivered on June 26, 1998 (Unpublished in Official Gazette)
Plaintiff
Korea Asset Management Corporation and one other (Attorney Lee Jin-soo, Counsel for the plaintiff-appellant)
Seoul District Court Decision 2001Na3121 delivered on May 23, 2001
The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.
1. According to the reasoning of the judgment below, in case where there is an obvious reason that the deposited dividends could not be paid to the mortgagee of the right to collateral security after depositing the dividends on behalf of the mortgagee who was absent on the date of distribution as in this case, the court below did not have any express provision in the current Civil Procedure Act concerning the disposal of the deposit money, but Article 597 of the same Act provides that the court shall order payment or other distribution procedures if there is proof that the dividends were withdrawn pursuant to the provisions of Article 595 or Article 596," and it cannot be deemed that the amount of dividends cannot be similar to the dividends of the claim under the condition that the deposit of the mortgagee of the right to collateral security was suspended, and it cannot be applied by analogy Article 589 Paragraph (2) to the creditor of the right to collateral security at the time when the court of execution did not raise an objection against the distribution date, and even if the creditor of the right to collateral security at the time when the creditor of the right to collateral security had already been paid the dividends on the date of distribution, it shall be deemed that the creditor's claim should have already terminated the distribution date.
2. However, we cannot agree with the judgment of the court below in the following respects:
In the case of this case, there is no express provision in the current Civil Procedure Act concerning the settlement of the deposit. However, if the payment of the deposit is uncertain, it can be said that the distribution procedure has not yet been terminated until the deposited dividend is paid to the deposited person. Thus, if the deposited dividend is deposited for the secured creditor who was absent on the date of distribution and then it is found that all the secured obligation of the above secured creditor has been extinguished, it cannot be readily concluded that the distribution procedure has been terminated definitely. In light of the fact that the auction system obtains the creditor's satisfaction from the debtor's property, it is against the purpose of the system to make the creditors who are not satisfied with the fundamental purpose and pay the deposit to the debtor. In this case, it is reasonable to apply Article 597 of the Civil Procedure Act, which provides that the dividend court shall order payment or other distribution procedure by analogy until the deposited dividend is paid to the deposited person (see, e.g., Supreme Court Decision 2006Da6875, Jun. 26, 1998).
Therefore, the judgment of the court below that the above deposit should be paid to the obligor is erroneous in the misapprehension of legal principles as to the dividend procedure. Thus, the ground of appeal pointing this out is with merit.
3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court 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 Son Ji-yol (Presiding Justice)