[1] Requirements for establishing joint and several liability

[2] In a case where part of a debt with a different amount is extinguished due to repayment, etc. when the debt with a larger amount is jointly and severally liable for a different amount (=the portion to be solely liable for a debt)

[3] In cases where dividends deposited as a result of the filing of a lawsuit of demurrer against a distribution and the settlement of a distribution schedule became final and conclusive with respect to a claim dissatisfied with the distribution schedule, whether the amount of dividends is extinguished at the time when the distribution schedule became final and conclusive within the scope of the amount appropriated for the deposited amount of dividends (affirmative in principle), and in cases where the creditor received and received the dividends deposited prior to the confirmation of the distribution schedule and the distribution schedule became final and conclusive with the same contents, the time when the repayment becomes effective (=the time of receipt of deposit money) / Whether the same applies to cases where other creditors raise an objection against the secured claim of the mortgagee, and the amount deposited as a result of the confirmation of the distribution schedule through the lawsuit of demurrer against distribution (affirmative)

[4] In a case where a mortgagee who takes precedence over a creditor requesting auction in an auction procedure to exercise a security right submits a claim statement concerning the amount of the secured claim prior to the completion date of demanding a distribution or revises the distribution schedule until the distribution schedule is prepared thereafter, and thereby the distribution schedule becomes final and conclusive, the scope of interest included in the distribution or damages for delay, and whether the same applies to the case where other creditors raise an objection against the secured claim of the mortgagee who submitted a claim statement, and the pertinent amount of dividends deposited as the distribution schedule became final and conclusive through a lawsuit of demurrer against distribution (affirmative)

[5] In a case where other creditors raise an objection against the secured claim of the mortgagee who submitted the claim statement, and the dividend deposited as a result of the settlement schedule became final and conclusive through a lawsuit of demurrer against distribution, whether the dividend is appropriated first for the interest accrued until the time when the distribution schedule became final and conclusive pursuant to Article 479(1) of the Civil Act (where it can be deemed that the repayment takes effect at the time of receiving the deposit prior to the time when the distribution schedule became final and conclusive, until the time when the deposit is received) or the damages incurred by delay or the claim (affirmative in principle)

[6] Requirements for compulsory execution under a final and conclusive judgment to constitute abuse of rights

[1] The quasi-joint and several liability relationship may be established if the other party’s obligation is extinguished due to repayment, etc., even if it is an independent obligation arising from a separate cause, and if one of the overlapping parts becomes extinct due to repayment, etc., the cause of both obligations, amount of obligations, etc. shall not be the same as that of each other.

[2] In a case where part of a debt with a different amount is extinguished due to repayment, etc. when a joint and several liability relationship exists, the part to be extinguished first shall be deemed as the part to be jointly and severally liable, not the part to be jointly and severally liable with another debtor, in light of the purport of the joint and several liability system that seeks to ensure the payment

[3] A creditor who appears on the date of distribution in the real estate auction procedure may raise an objection against other creditors as to his/her claims or the order of the said claims to the extent related to his/her own interests (Article 151(3) of the Civil Execution Act). In such cases, a creditor who has raised an objection shall file a lawsuit of demurrer against distribution (Article 154(1) of the Civil Execution Act). When a lawsuit of demurrer against a legitimate objection against a claim against a distribution schedule is filed, the amount of distribution to such claim shall be deposited (Article 160(1)5 of the Civil Execution Act). The distribution schedule for the objection portion is not finalized (Article 152(3) of the Civil Execution Act).

If the judgment in favor of all or part of the claims raised in a lawsuit of demurrer against distribution becomes final and conclusive after the amount of dividends has been deposited as above, the distribution schedule on the disputed part becomes final and conclusive. As such, the grounds for deposit are extinguished. Therefore, if a creditor who has received such final and conclusive judgment files an application for the payment of dividends with a court of execution by proving such facts, etc., the court of execution shall revise the previous distribution schedule according to the contents of the judgment and make a re-distribution of the deposited money (Article 161(1)

In such cases, the junior administrative officer, etc. of the court of execution shall send a letter of consignment stating the dividend amount to the deposit officer, and deliver a certificate of payment of dividend to the person to be paid (Article 159(2) and (3) of the Civil Execution Act, Article 82(1) of the Civil Execution Rule, and Article 43(1) of the Deposit Rule). In such cases, the deposit officer shall, as the assistant of the court of execution, have the creditor deposit money in accordance with the letter of entrustment of payment of deposit by the court of execution without examining

In light of the above procedures, an obligee may file an application for the payment of the deposited dividend only when the distribution schedule is finalized, and thus, it cannot be deemed that the repayment of the claim takes effect even if the obligee did not receive the dividend prior to the confirmation of the distribution schedule. Meanwhile, once the distribution schedule becomes final and conclusive, the obligee is in a position to receive the deposit immediately, and the repayment takes effect at any time after the confirmation of the distribution schedule (the time when the payment certificate is issued or the deposit is paid). If it is deemed that the repayment takes effect at any time after the confirmation of the distribution schedule becomes final and conclusive (the time when the payment certificate is issued or the deposit is paid), the time of extinguishment of the obligation can be delayed according to the obligee’

Therefore, barring special circumstances, such as the obligor’s formation and maintenance of a cause of disability that makes it difficult to withdraw the deposit amount, the claim against the dividend amount shall be deemed extinguished at the time of confirmation of the distribution schedule to the extent that the deposited dividend amount is appropriated. However, in cases where the obligee receives the deposited dividend prior to the confirmation of the distribution schedule and the distribution schedule becomes final and conclusive with the same content, it is reasonable to deem that the repayment takes effect when the obligee receives the deposited dividend amount, which is the time when the obligee actually satisfied the claim.

This legal doctrine applies likewise to cases where other creditors raise an objection to the secured claim of the mortgagee, and the relevant amount of distribution was deposited, and the dividend deposited as the distribution schedule became final and conclusive through a lawsuit of demurrer against distribution is paid.

[4] Even if a mortgagee who takes precedence over a creditor requesting auction in an auction procedure to exercise a security right fails to demand a distribution, he/she may, as a matter of course, receive a distribution according to the order within the scope of the maximum debt amount stated on the register. Thus, even if such mortgagee did not submit a claim statement, it shall not

If, prior to the completion date of the demand for distribution, the mortgagee, either submitted a claim statement concerning the amount of the secured claim or revised the distribution schedule until the completion date of the subsequent request for distribution, and the distribution schedule is finalized accordingly, the interest or damages for delay, which was submitted or corrected within the scope of the maximum debt amount, may be included in the distribution, and which was incurred until the date of distribution, may not be included in the distribution.

This legal doctrine also applies to cases where other creditors raise an objection to the secured claim of the mortgagee who submitted the claim statement, and the relevant amount of dividend was deposited, and the dividends deposited as a result of the confirmation of the distribution schedule through a lawsuit of demurrer against distribution is paid. Therefore, in such cases, even if the dividends have been deposited after the date of distribution, interest or delay damages incurred during the period of deposit of dividends after the date of distribution, only the interest or delay damages accrued until the date of distribution within the scope of the maximum debt amount may be included in the amount of dividends.

[5] In a case where other creditors raise an objection against the secured claim of the mortgagee who submitted the claim statement, and the dividend deposited as a result of the settlement schedule became final and conclusive through a lawsuit of demurrer against distribution, the dividend shall, barring any special circumstance, be deemed appropriated first to the interest accrued until the settlement date of the distribution schedule pursuant to Article 479(1) of the Civil Act (where it is deemed that the repayment takes effect at the time of receipt of the deposit prior to the time when the distribution schedule became final and conclusive, referring to the time of receipt of the deposit; hereinafter the same shall apply) or damages incurred by the time when the distribution schedule becomes final and conclusive,

① The term “performance of an obligation” means, when a debtor bears several obligations to the same creditor having the same kind of objective, or when several obligations are to be performed due to the repayment of a single obligation are insufficient to extinguish the entire obligation, the payment of which is to be made is to be appropriated for the repayment of a certain obligation. The exclusion is made even though the interest on the relevant obligation was incurred until the date of distribution schedule became final and conclusive after the date of distribution, and if it is appropriated only for the payment of the interest or delay damages incurred until the date of distribution schedule, it goes against the essence of the appropriation of an obligation.

② Payment of the deposited dividend in accordance with the outcome of a lawsuit of demurrer against distribution is completed within the scope of the provisional postponement of the distribution procedure. As such, equity with other creditors who received the dividend fixed on the date of distribution ought to be taken into account (i.e., the amount of dividend to one creditor would have to be reduced if the amount of dividend to one creditor increases, as the financial resources for distribution have been limited). However, whether it is appropriated for the repayment of a claim among the claims existing under substantive law at the time when the repayment becomes effective due to the receipt of the dividend comes into question only between the debtor and the relevant creditor, and thus does not affect

③ If it is deemed that only the principal, interest, and delay damages entered in the statement of claim may be included in the “amount of distribution” and the “amount of appropriation for payment” can be limited to the principal, interest, and delay damages, this is likewise the same as deeming that the mortgagee, who submitted the statement of claim, may always set and appropriate only the portion of the interest and delay damages up to the date of distribution.

[6] Res judicata of a final and conclusive judgment is recognized upon the request of the parties and all courts to respect the final and conclusive judgment in accordance with the criteria for dispute resolution, insofar as the court has concluded a lawsuit based on legal disputes between the parties. The Civil Procedure Act has a review system as a special method of filing an objection so that the final and conclusive judgment may be revoked only in exceptional cases where serious defects exist to the extent that it is impossible to maintain the final and conclusive judgment as it is, and the final and conclusive judgment may be re-adjudicationd on the case that has already been terminated. Res judicata is allowed only in the case where reasons listed in the Civil Procedure Act exist (Articles 451 and 452 of the Civil Procedure Act) and within a certain period (Article 456 of the Civil Procedure

Therefore, compulsory execution according to the final judgment should not be easily recognized as abuse of rights, and there should be special circumstances such as where the contents of the final judgment are contrary to the substantive legal relationship and the execution is considerably unfair and the other party's acceptance of execution is clearly contrary to the justice so that it is obviously unreasonable to allow it to be executed.

[1] Article 413 of the Civil Act / [2] Article 413 of the Civil Act / [3] Articles 151(3), 152(3), 154(1), 159(2) and (3), 160(1)5, and 161(1) of the Civil Execution Act, Article 82(1) of the Civil Execution Rule, Article 43(1) of the Deposit Rule / [4] Articles 84, 88, 147(1), 148, 151(3), 154(1)5, 160(1), 161(2), 169(1), and 268 of the Civil Execution Act / [5] Article 151(3), Article 160(1)5, Article 161(3), Article 161(2), Article 46(1)4 of the Civil Execution Act, Article 56(1) of the Civil Procedure Act, Article 467(1) of the Civil Execution Act

[1] Supreme Court Decision 2006Da47677 Decided March 26, 2009 (Gong2009Sang, 528) / [2] Supreme Court Decision 99Da67376 Decided March 14, 200 (Gong2000Sang, 959) Supreme Court en banc Decision 2012Da74236 Decided March 222, 2018 (Gong2018Sang, 688) / [3] Supreme Court Decision 2009Da39363 Decided July 23, 2009 / [4] Supreme Court Decision 98Da21946 Decided January 26, 199 (Gong199Sang, 349) / [2] Supreme Court Decision 2009Da74819 decided September 29, 205 (Gong1998Da7499 decided September 26, 2005)

Plaintiff (Law Firm Song-tae et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Name, Attorneys Jin-ju et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2015Na34344 decided October 14, 2015

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Summary and key issues of the instant case

A. The Plaintiff and Nonparty 1 issued a promissory note (hereinafter “instant promissory note”) which causes KRW 250 million in face value with the Defendants as the payee. The Defendants filed a lawsuit against the Plaintiff seeking the payment of the instant promissory note (hereinafter “instant prior suit”) against the Plaintiff and received a favorable judgment, and the said judgment became final and conclusive.

One Development Co., Ltd. (hereinafter “I”) established one of the obligors, Defendant 2, etc., as to a building owned by one of the instant promissory notes at the time of the issuance thereof. The auction procedure was initiated against the said building. Defendant 2 submitted to the executing court a claim statement stating the claimed amount as “the principal amount of KRW 500 million and damages for delay up to the date of distribution.” On the date of distribution of the said auction procedure, another mortgagee raised an objection against the dividend amount of Defendant 2, and subsequently filed a lawsuit of demurrer against distribution (hereinafter “Lawsuit of demurrer against distribution”). The said amount of distribution was deposited upon the filing of a lawsuit of demurrer against distribution against Defendant 2. A final and conclusive judgment that partially reduces the amount of distribution against Defendant 2 in the lawsuit of demurrer against distribution of the instant promissory note, and Defendant 2 received the amount recognized in the said judgment among the deposited money.

As a result, the Plaintiff asserted that the obligation against the Defendants was repaid, and accordingly, the Plaintiff’s obligation against the Defendants was extinguished. The Plaintiff filed a lawsuit of objection against the instant claim as to the final and conclusive judgment in favor of the previous suit.

B. The key issue of the instant case is as follows: (a) whether the Plaintiff’s obligation against the Defendants and one development obligation is in a non-joint and several relationship; (b) if there is a non-joint and several relationship, the Plaintiff and one development jointly bears the obligation; and (c) one of the joint and several obligations solely bears the obligation; and (d) when the repayment becomes effective in relation to the payment of dividends by Defendant 2, the point at which the obligation is extinguished (payment) or when the said payment takes place; and (b) whether the said paid dividends are preferentially appropriated for the “interest or delay damages accrued until the time when the distribution schedule becomes final and conclusive after the date of distribution” among the Defendants’ claims. Lastly, if the Defendants collected the amount from the joint issuers of the instant promissory note prior to the filing of the instant suit, the issue is whether compulsory execution based on the final and conclusive judgment

2. Whether the lower court erred by misapprehending the legal doctrine on vicarious joint and several liability

A. The quasi-joint and several liability relationship is established, even if it is independent of one another’s obligations arising out of different causes, if the other party’s obligations are extinguished due to repayment, etc. of the same economic purpose, and the other party’s obligations are also extinguished. It does not necessarily require that the cause of both obligations, the amount of obligations, etc. should be identical to each other (see Supreme Court Decision 2006Da47677, Mar. 26, 2009).

In a case where part of a debt with a different amount is extinguished due to repayment, etc., the part to be extinguished first shall be deemed not to be the part to be jointly and severally liable with another debtor, but the part to be solely liable, in light of the purport of the quasi-joint and several liability system that seeks to ensure the payment of the total amount of the debt (see, e.g., Supreme Court Decisions 9Da67376, Mar. 14, 200; 2012Da74236, Mar. 22, 2018).

B. According to the lower judgment, the following facts are revealed.

(1) On December 3, 2006, the Plaintiff and Nonparty 1 requested the Defendants to make an investment of KRW 200 million by having the Defendants enter into a contract for the artificial insemination of ○○○○○land under construction. On December 29, 2006, the Defendants delivered the Plaintiff and Nonparty 1 a total of KRW 195,953,600 to the Plaintiff and Nonparty 1. Nonparty 1 issued the Promissory Notes in this case with a face value of KRW 250,000,000 in order to secure the said investment on the same day. Thereafter, on January 3, 2007, the Plaintiff received the remainder of KRW 5,046,40 from Defendant 1 to the issuer of the Promissory Notes, and added Defendant 1 to the payee.

(2) Although the Defendants offered a payment of the Promissory Notes at the due date, they filed the instant previous suit against the Plaintiff, seeking the payment of the Promissory Notes (Seoul Central District Court Decision 2009Da410953). On August 31, 2010, the said court rendered a judgment ordering the Plaintiff to pay KRW 250 million and interest or delay damages thereon. The Plaintiff’s appeal was dismissed, and the said judgment became final and conclusive on May 13, 201 (hereinafter “final and conclusive judgment on the previous suit”).

(3) On December 29, 2006, as at the time of the issuance of the Promissory Notes, one Development completed the registration of creation of a mortgage on the five-story and the five-story and above-ground (hereinafter “the instant building”). One Development agreed to pay KRW 500 million per annum to Defendant 2 in the event that the instant Promissory Notes are not paid. On May 12, 2010, one Development agreed to pay KRW 90 million per annum, the principal amount of KRW 50 million per annum and interest accrued up to the point of full payment, and the principal amount of KRW 50 million per annum from August 11, 2010 to the date of full payment.

(4) Many creditors filed an application for a compulsory auction against the instant building and its site, and the Jeonju District Court Branch of the Military Court (hereinafter “Military Accounting Support”), a executing court, jointly held each auction procedure and carried out the auction procedure as a blanket auction method (hereinafter “instant auction procedure”). Defendant 2 received dividends of KRW 794,931,506 as a mortgagee on December 12, 2014 in accordance with the distribution schedule finalized through the process of demurrer to distribution, etc. in the instant auction procedure.

C. Based on the above findings, the lower court determined as follows.

(1) The instant promissory note gold claims and claims under the agreement dated May 12, 2010 are all included in the secured debt of the instant right to collateral security. One development is to simultaneously bear the instant promissory note gold obligations by setting up and granting the instant right to collateral security.

(2) One development’s debt amount against the Defendants is larger than the Plaintiff’s debt amount against the Defendants, and the two obligations arise for separate causes. However, in relation to the Promissory Notes of this case, the non-joint and several relationship exists with respect to the overlapping part as a debt with the same economic purpose.

(3) At the instant auction procedure, Defendant 2’s dividends received by Defendant 2 on the basis of the instant right to collateral security shall be extinguished by repayment from the portion on which one development solely bears the obligation.

D. Examining the reasoning of the lower judgment in light of the evidence duly admitted, such determination by the lower court is justifiable in accordance with the legal doctrine as seen earlier. In so determining, the lower court did not err by misapprehending the legal doctrine on quasi-joint and several liability, contrary

3. When the dividends deposited by the mortgagee have been received after the date of distribution, the time when the extinction of obligation takes effect and the scope of interest or damages for delay appropriated in preference to the principal in such case.

(a) Time when the extinction of obligation takes effect;

A creditor who has appeared on the date of distribution at the real estate auction procedure may raise an objection against other creditors against his/her claims or the order of such claims to the extent related to his/her interests (Article 151(3) of the Civil Execution Act). In such cases, a creditor who has raised an objection shall file a lawsuit of demurrer against distribution (Article 154(1) of the Civil Execution Act). When a lawsuit of demurrer against a legitimate distribution is filed with respect to a claim against which an objection has been raised on the distribution schedule, a creditor who has raised an objection shall deposit the amount of distribution thereof (Article 160(1)5 of the Civil Execution Act), and the distribution schedule with respect to the objection portion is not confirmed (Article 152(3) of the Civil Execution Act)

As above, once a judgment in favor of all or part of the claims asserted in a lawsuit of demurrer against distribution becomes final and conclusive after the amount of dividends has been deposited, the distribution schedule as to the disputed portion becomes final and conclusive. As such, the grounds for deposit are extinguished. Therefore, if a creditor who has received such final and conclusive judgment files an application for the payment of dividends with the court of execution by proving the fact, etc., the court of execution shall revise the previous distribution schedule according to the contents of the judgment, and make the distribution again (see Article 161(1) of the Civil Execution Act and Supreme Court Decision 2009Da39363, Jul. 23, 2009).

In such cases, a junior administrative officer, etc. of the executing court shall send a letter of consignment stating the dividend amount to the deposit officer, and deliver a certificate of payment of the dividend amount to the person to be paid (Article 159(2) and (3) of the Civil Execution Act, Article 82(1) of the Civil Execution Rule, and Article 43(1) of the Deposit Rule). In such cases, the deposit officer, as the assistant of the executing court, shall pay the deposit money to the creditor in accordance with the deposit payment entrustment document of the executing court without examining the reasons for payment of the deposit (see the above Supreme Court Decision 2009Da39

In light of the above procedures, a creditor may apply for the payment of the deposited dividend only when the distribution schedule is finalized, and thus, it cannot be deemed that the repayment of the claim takes effect even if the creditor did not receive the dividend prior to the confirmation of the distribution schedule. Meanwhile, when the distribution schedule becomes final and conclusive, the creditor is in a position to receive the deposit immediately, and the repayment takes effect at any time after the confirmation of the distribution schedule (the time when the payment certificate is issued or the deposit is paid). If it is deemed that the repayment takes effect at any time after the confirmation of the distribution schedule becomes final and conclusive (the time when the payment certificate is issued or the deposit is paid), the time of extinguishment of the obligation can be delayed according to the creditor’s intention,

Therefore, barring special circumstances, such as the obligor’s own formation and maintenance of the obstacles to making it difficult to withdraw the deposit amount, the claim against the dividend amount shall be deemed extinguished at the time of confirmation of the distribution schedule to the extent that the deposited dividend amount is appropriated. However, in cases where the obligee receives the deposited dividend prior to the confirmation of the distribution schedule and the distribution schedule becomes final and conclusive with the same content, it is reasonable to deem that the repayment takes effect when the obligee receives the deposited dividend, which is the time when the obligee actually satisfied the claim.

This legal doctrine applies likewise to cases where other creditors raise an objection to the secured claim of the mortgagee, and the relevant amount of distribution was deposited, and the dividend deposited as the distribution schedule became final and conclusive through a lawsuit of demurrer against distribution is paid.

(b) The scope of interest or damages for delay appropriated prior to the principal; and

Even if a mortgagee who takes precedence over a creditor requesting auction in an auction to exercise a security right fails to demand a distribution, he/she may naturally receive a distribution according to the order of priority within the scope of the maximum debt amount stated in the register. Thus, even if such mortgagee did not submit the claim statement, it shall not be excluded from the distribution

If, prior to the completion date of the demand for distribution, the distribution schedule becomes final and conclusive by submitting a claim statement concerning the amount of the secured claim or revising the distribution schedule until the distribution schedule is prepared thereafter, the interest or delay damages submitted or corrected within the scope of the maximum debt amount may be included in the distribution. However, the interest or delay damages incurred after the date of distribution may not be included in the distribution (see, e.g., Supreme Court Decisions 98Da21946, Jan. 26, 1999; 99Da24911, Sept. 8, 200; 2009Da70555, Jul. 14, 201).

This legal doctrine also applies to cases where other creditors raise an objection to the secured claim of the mortgagee who submitted the claim statement, and the relevant amount of dividend was deposited, and the dividends deposited as a result of the confirmation of the distribution schedule through a lawsuit of demurrer against distribution is paid. Therefore, in such cases, even if the dividends have been deposited after the date of distribution, interest or delay damages incurred during the period of deposit of dividends after the date of distribution, only the interest or delay damages accrued until the date of distribution within the scope of the maximum debt amount may be included in the amount of dividends.

However, the same legal doctrine is naturally applicable even in the case where the amount of dividends established as above is appropriated for the repayment of claims arising from the time when the repayment becomes effective. In a case where other creditors raise an objection against the secured claim of the mortgagee who submitted the claim statement and the amount of dividends deposited as a result of the settlement of the distribution schedule became final and conclusive through the lawsuit of demurrer against distribution is paid, the dividends shall, barring any special circumstance, be deemed to have been appropriated in advance for the interest accrued until the distribution schedule becomes final and conclusive pursuant to Article 479(1) of the Civil Act (where it can be deemed that the repayment takes effect at the time of receipt of the deposit prior to the time when the distribution schedule becomes final and conclusive as seen above, referring to the time the deposit is received; hereinafter the same shall apply) or the damages incurred by delay which are appropriated

(1) The term “performance of an obligation” means a decision to determine whether to apply the payment of an obligation when a debtor bears several obligations to the same creditor with the same purpose, or when the payment of an obligation is insufficient to extinguish the entire obligation when the payment of an obligation is to be made with the performance of a single obligation. If the interest on the pertinent claim or the damages for delay arose from the time when the distribution schedule became final and conclusive after the date of distribution, but is appropriated only for the payment of the interest or the damages for delay incurred on the date of distribution, this would be contrary to the intrinsic nature of the appropriation of an obligation, which would be different from the time when the payment takes effect and the time when the payment was made at the

(2) As seen earlier, paying the deposited dividends according to the outcome of a lawsuit of demurrer against distribution is completed within the scope of the provisional withheld distribution procedure. As such, the equity among other creditors who received the dividends fixed on the date of distribution should be considered (if one creditor increases, the amount of dividends to other creditors shall be reduced if the amount of dividends to one creditor is limited). However, as the receipt of dividends becomes effective, whether it is appropriated for the repayment of a claim among the claims existing under the substantive law at the time of the extinction of a debt (payment) due to the receipt of dividends is a matter of concern only between the debtor and the relevant creditor, and it does not affect the amount of dividends

(3) If it is deemed that only the principal, interest, and delay damages entered in the statement of claim may be included in the “amount of distribution” and the “amount of appropriation for payment” can be limited to the principal, interest, and delay damages, this would be the same as deeming that the mortgagee, who submitted the statement of claim, may always set and appropriate only the portion of the interest and delay damages up to the date of distribution.

C. According to the evidence duly admitted by the lower judgment and the lower judgment, the following facts are revealed.

(1) In the instant auction procedure, on August 9, 2012, Defendant 2 submitted a claim statement containing “20% per annum from August 10, 2010 to August 28, 2012, the sum of KRW 205,479,452 (i.e., KRW 205,479,452) of the agreed amount calculated at the rate of 20% per annum from August 10, 2010 to KRW 50 million.”

(2) On August 28, 2012, the date of distribution, Nonparty 1, the mortgagee, and Defendant 2, future 817,106,640 won out of the amount to be actually distributed as of August 28, 2012, the Gun origin prepared a distribution schedule (hereinafter “instant distribution schedule”). Nonparty 2, the other mortgagee, appeared on the date of distribution, and raised an objection against the said amount out of the instant distribution schedule.

(3) On August 31, 2012, Nonparty 2 filed a lawsuit of demurrer against Nonparty 1 and Defendant 2, etc. The said amount of dividends against Nonparty 1 and Defendant 2 was deposited. On June 19, 2014, the appellate court of Gwangju High Court, which was the appellate court of the said lawsuit, rendered a judgment that “The amount of dividends against Nonparty 1 out of the amount of dividends of Nonparty 1 and Defendant 2 out of the amount of dividends of KRW 817,106,640 against Defendant 2 shall be KRW 0, and the amount of dividends against Defendant 2 shall be corrected to KRW 794,931,506, KRW 794,506, KRW 500,000,000, KRW 599,000,000 and KRW 506,000,000,0000, KRW 596,000,000.

(4) Although Nonparty 2 and Defendant 2 appealed against the above judgment, the appeal was dismissed, and the above judgment became final and conclusive on December 17, 2014.

(5) Defendant 2 received the deposited dividends of KRW 794,931,506, Dec. 12, 2014, prior to the date of the said judgment.

D. Examining the foregoing factual basis in light of the legal doctrine as seen earlier, the instant distribution schedule was finalized on December 17, 2014, which was the date when the judgment on the lawsuit of demurrer against distribution became final and conclusive, but, on December 12, 2014, Defendant 2 received dividends of KRW 794,931,506 deposited by Defendant 2 on December 12, 2014, and actually obtained the satisfaction of the claim, and thus, the repayment becomes effective at that time. Furthermore, the said dividends amounting to KRW 794,931,506, and KRW 794,931,506, the said dividends amount ought to be first appropriated for the repayment of the interest accrued until December 12, 2014, which is the date when the repayment becomes effective, and the remaining amount ought to be appropriated for the repayment of principal.

In the same purport, the judgment below did not err by misapprehending the legal principles as to the point at which the obligation due to the withdrawal of the deposited dividend takes effect and the scope of interest or delay damages appropriated in preference to the principal, which affected the conclusion of the judgment.

4. Whether to deny compulsory execution based on the final judgment of the instant prior suit as much as the Defendants collected from Nonparty 1

A. The grounds for raising an objection against a final judgment shall accrue after the pleadings of the final judgment have been concluded (Article 44(2) of the Civil Execution Act).

Res judicata of a final and conclusive judgment is recognized upon the request of the parties and all the courts to respect the final and conclusive judgment as a standard for dispute resolution for legal stability, so long as a lawsuit is concluded by the court as to a legal dispute between the parties (see, e.g., Supreme Court Decision 86Meu2756, Jun. 9, 1987). The Civil Procedure Act provides for a retrial system by means of special appeal for the revocation of a final and conclusive judgment and re-adjudication of a case which has already been concluded only in exceptional cases where there are serious defects to the extent that it is impossible to maintain the final and conclusive judgment as it is, and only in exceptional cases where there are causes listed in the Civil Procedure Act (Articles 451, 452 of the Civil Procedure Act), and within a certain period (Article 456 of the Civil Procedure Act, Article 457)

Therefore, compulsory execution according to a final and conclusive judgment should not be easily recognized as abuse of rights. For such recognition, there must be special circumstances such as where the contents of the final and conclusive judgment are contrary to substantive legal relationship, and where the execution is considerably unfair and the other party’s acceptance of such execution is obviously contrary to justice and it is obviously unreasonable to allow the other party to receive such execution (see Supreme Court Decision 2017Da232105, Sept. 21, 2017).

B. According to the evidence duly admitted by the lower judgment and the lower court, the following facts are revealed. ① On January 30, 2008, the Defendants received a claim seizure and collection order against Nonparty 1’s deposit claim, a joint issuer of the instant promissory note, and collected KRW 20,587,017 out of the instant promissory note amount. ② Thereafter, the Defendants filed the instant prior suit against the Plaintiff on October 29, 2009. The date of closing the argument of the final judgment in the instant prior suit is July 20, 2010.

Even if the Defendants collected part of the Promissory Notes, such collection cannot be a legitimate ground for objection due to the occurrence of the date of closing argument in the final and conclusive judgment of the instant previous suit. Moreover, the circumstance that the Defendants filed the instant previous suit after partial collection is insufficient to deem that there exist special circumstances, such as: (a) the execution based on the final and conclusive judgment of the instant previous suit is considerably unfair and unreasonable; and (b) it is apparent that it would obviously go against justice

In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding the grounds for objection.

5. Conclusion

The Plaintiff’s appeal is dismissed as it is without merit, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Chang-suk (Presiding Justice)