Ansan support-2015-Ba-14752 (Law No. 17, 2016)

In the auction procedure for inherited property, the preferential relationship between the inherent creditor of the qualified acceptor and the inheritance obligee.

In the auction procedure regarding inherited property, it is unfair that the sales proceeds have not been distributed to the plaintiff who is an inheritance obligee in preference to the defendants who are inherent creditors of the qualified acceptors. Since the sum of the dividends to the defendants and the dividends to the plaintiff are added to the amount of the plaintiff's claim, the defendants acquired the right to claim a dividend payment as stated in the separate sheet without any legal ground.

2016Na54251 Right to Claim assignment and Notice of Assignment

○ Saemaul Fund

Republic of Korea and 1

Suwon District Court Decision 2015Na14752 decided February 17, 2016

2016.08.23

2016.09.08

1. Revocation of a judgment of the first instance;

2. The Defendants transfer to the Plaintiff the right to claim a dividend payment indicated in the separate sheet, and give notice of each of the above assignment to the Republic of Korea (the competent district court deposit officer of Suwon District Court).

3. The total costs of the lawsuit shall be borne by the Defendants.

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by considering the whole purport of the pleadings in each entry in Gap evidence of subparagraphs 1 through 5, Eul evidence of subparagraphs 1 through 4, Eul evidence of subparagraph 1, and Eul evidence of subparagraph 1:

A. On June 4, 2013, the Plaintiff loaned money to ○○○ on the same day. In order to secure the above loan obligation on the same day, ○○○○○○○○○○-dong, ○○○○○-dong, ○○○○○○ (hereinafter “instant real property”), the Plaintiff completed the registration of creation of a collateral security (hereinafter “instant collateral security”) with respect to ○○○○-dong, ○○○○-dong, ○○○○-dong, ○○○, ○○

B. After that, when ○○ died on November 3, 2013 and the principal and interest of the loan was overdue, the Plaintiff, on February 28, 2014, filed an application for the auction of real estate with the Suwon District Court, on March 14, 2014, after completing the registration of ownership transfer under the name of ○○, Jeon-A, and Jeon-B, on behalf of the heir of ○○○○ (spouse), Jeon-A, and Jeon-B (son), who is the heir of ○○○○○○, on behalf of his/her children, filed an application for the auction of real estate under the name of ○○, Jeon-A, and Jeon-B, on behalf of his/her children. On March 17, 2014, the said court rendered the order to commence the auction on March 17, 2014. Meanwhile, on March 27, 2014, the ○○○, the spouse of ○○○, a spouse of the deceased High Court, was inherited by the Suwon District Court.

C. On November 10, 2014, the above auction court prepared a distribution schedule of KRW 7,137,070 (the amount of the request for delivery was KRW 7,137,070,000,000) to the head of ○○ Tax Office (the right holder of the distribution right), who is the right holder of the right to distribute the amount to be actually distributed in the above auction procedure, on November 10, 2014, for KRW 84,590, and for KRW 4,413,170 (the amount of the request for delivery was KRW 6,141,810, but the due date was 4,413,170,000 prior to the date of the registration of the establishment of the right to distribute the distribution right of KRW 3 (the right holder of the distribution right of KRW 7,137,07,63767,676, respectively) to the Plaintiff who is the right holder of the right to distribute dividends.

D. The money that the head of the above ○○ Tax Office, the head of the ○○○○ Office, the head of the ○○○ Office, and the head of the ○○ Office requested to deliver is about ○○, a spouse of the deceased ○○○ Office, among heirs.

E. Meanwhile, the Plaintiff appeared on the date of distribution of the said voluntary auction, and raised an objection against the total amount of dividends paid by the head of ○○ Tax Office and the head of ○○○ branch office of the said ○○○○○○○○○○○○○, and filed a lawsuit of demurrer against the Defendants by the head of the Suwon District Court, but the said court rendered a declaration of termination of the lawsuit on July 29, 2015 on the ground that the Plaintiff was absent on the first date for pleading and concluded as the withdrawal of the lawsuit.

2. Summary of the parties' arguments

A. The plaintiff

Defendant Republic of Korea’s value-added tax claim (the claim based on 7,137,070 won as dividends to ○○○○ branch office) and Defendant ○○○ Corporation’s insurance premium claim (the claim based on 4,413,170 won as dividends to ○○ branch office’s ○○○○○○○, and the claim based on the above value-added tax claim) are not claims against the decedent, but claims against ○○○, an heir who was adjudicated on qualified acceptance. The Defendants’ claim against the heir in the voluntary auction procedure for the instant real estate, which is the inherited property of ○○○○○○○○, may not be distributed in preference to the Plaintiff’s claim against the decedent, which is the creditor of the right to collateral security division of this case, even if the statutory due date or due date is more than the date prior to the date of the registration of establishment of the instant mortgage. Therefore, the Defendants are obligated to transfer the above claim to the Plaintiff and notify each of the above assignment of claims.

B. The Defendants

In the auction procedure on inherited property, the preferential relationship between the creditor and the creditor in the inheritance with respect to the qualified acceptors is in accordance with the general principle under the Civil Act. Since the inheritance obligee cannot assert the preferential status solely on the grounds of qualified acceptance, in this case, insofar as it is evident that the statutory due date or time limit for payment of the Defendants’ claims, etc. is earlier than the date for establishing the

3. Determination on the cause of the claim

A. Relevant legal principles

Article 1028 of the Civil Code provides that "the inheritor may approve the inheritance on the condition that he/she shall repay his/her obligations and testamentary gifts to the extent of the property to be acquired by the inheritance." If the inheritor has made a report on the qualified acceptance pursuant to the above provisions, the liability of a qualified acceptor for the obligation of the inheritee is limited to the inherited property, and as a result, an inheritance obligee may not perform compulsory execution against the inherent property of the inheritor, and may obtain satisfaction of claims only from the inherited property,

Where the inherent obligee of a qualified acceptor who is not an inheritance obligee has acquired a security right such as a mortgage on inherited property, the preferential relationship between the obligee who has acquired such security right and the obligee may be in accordance with the general principle under the Civil Act and the obligee may not assert preferential status (see, e.g., Supreme Court en banc Decision 2007Da77781, Mar. 18, 2010). However, barring any circumstances such as the acquisition of a security right on inherited property, it is consistent with the principle of equity or with the purport of the qualified acceptance system to deem that it is impossible to enforce compulsory execution on the inherited property by taking the inherited property as the inherent property of the inherited property against the qualified acceptor under the circumstance that the obligee has failed to meet his/her claim from the inherited property, and even where the inherent obligation of the qualified acceptor is a tax obligation, this is the same as if it is not related to taxes or additional dues imposed on the inherited property itself, i.e., the pertinent tax (see Supreme Court Decision 2015Da250574, May 24

B. Determination

Examining the above facts in light of the legal principles as seen earlier, the sales price of the instant real estate, which is an inherited property, shall be preferentially distributed to the Plaintiff, who is an inheritance obligee, rather than the Defendants, who did not acquire a security right, such as a mortgage, as to the instant real estate, as an inherent obligee of Ansan○, who is an inherited property,

Therefore, in the auction procedure on the real estate of this case, it is unfair that the proceeds from the sale of the real estate of this case, which is inherited property, did not be distributed to the plaintiff who is an inheritance obligee, in preference to the defendants, who are inherent creditors against Ansan○, who are inherited property. Since the sum of the dividends to the defendants and the dividends to the plaintiff does not reach the plaintiff's amount of the plaintiff's claim, the defendants acquired the right to claim a dividend payment stated in the separate sheet without any legal ground. Ultimately, the method of return of unjust enrichment is in the form of the Republic of Korea where the obligor is the above right to claim a dividend payment and the notification of the transfer of the above claim. The defendants are obligated to transfer to the plaintiff the right to claim a dividend payment stated in the separate sheet,

4. Conclusion

If so, the plaintiff's claim is justified, and the judgment of the court of first instance is unfair with different conclusions, so the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked and it is so decided as per Disposition.