2010Na86503 Demurrer against distribution

1. Casino (00000 - 000000)

Si-Dong - Apartment.

2. Stamb○○ (0000 - 000000)

- Ku Dong-dong Other

3. Clerks (00000 - 00000).

Gu-dong

4. ○○○ (0000 - 00000)

Dong-dong apartment common use

[Judgment of the court below]

Attorney Kim Chang-soo

Co., Ltd., 000 Capital

Seoul Dong - - One floor in buildings

this representative director

Law Firm Sejong (Law Firm LLC, Counsel for defendant-appellant)

Attorney Kim Jin-tae

Incheon District Court Decision 2010Gahap2202 Decided August 27, 2010

April 20, 2011

May 4, 2011

1.The judgment of the first instance shall be modified as follows:

A. From among the distribution schedule prepared on July 24, 2009 by the above court at the Incheon District Court No. 33018, 2008, 34585 (Joint) around 2008, 40924 (Joint) ship auction case around 2008, 40924 (Joint), and 2008, 3301 (Joint) in the distribution procedure for the construction machinery auction case, the amount of dividends to the plaintiff 120 among the distribution schedule prepared on July 24, 2009, KRW 6,895, 120, the amount of dividends to the plaintiff 20, KRW 3,525,750, KRW 00 for the plaintiff 20, KRW 5,378,630 for the plaintiff 20, KRW 464,915, KRW 4910 for the defendant, KRW 16,101, and KRW 16,210.

B. The plaintiff Park Jong-young's claim is dismissed.

2. Of the total litigation cost, the part arising between the Plaintiff Park Jong-young and the Defendant is borne by the Defendant, and the part arising between the Plaintiff Park Jong-young, Seo-○, Lee, and Lee Dong-○ and the Defendant is borne by the Defendant.

【Claim】

Incheon District Court 2008 33018, 2008 34585 (Joint), 2008 Doz. 40924 (Dual)

The above court in the procedure of distributing dividends for the voluntary auction case, 200 other Doz. 33011 (Joint) construction machinery auction case

Of the dividend table drawn up on July 24, 2009, the amount of the dividend to Plaintiff Park Young-gu is KRW 16,52,500.

Ro, the amount of dividends against the plaintiff Park ○-○ is KRW 6,895,120, and the amount of dividends against the plaintiff Park ○-○

Won 3,525,750 won, 5, 378, 630 won, 5, 630 won, and 5,378, and 630 won, for the defendant

The amount of dividends paid to 464, 915, 710 won shall be corrected to 432,563,710 won, respectively (the plaintiffs shall be deemed to have been requested at the court of appeal)

chapter 38(1)(2).

【Purpose of Appeal】

The judgment of the court of first instance shall be revoked. The judgment of the court of first instance in Incheon District Court No. 2008, 33018, 2008, 34585 (Consolidation), 2008

In the case of the auction of the vessel of 40924 (Joint) the case of the auction of the vessel of 40924, the case of the auction of the construction machinery of 33011 (Joint) the case of the auction of the

In the distribution procedure, among the distribution schedule prepared by the above court on July 24, 2009, the amount of dividends to the plaintiff Park Jong-young 0

Won 16, 68, 588 won, 00 won for the amount of dividends against Plaintiff Park ○-○, 8,150,00 won, and Plaintiff Seo-○

The amount of dividends to ○ shall be KRW 5,370,00, KRW 00, KRW 6,712,50, KRW 00, and KRW 6,712, and KRW 500.

464, 915, 710 won, 428, 014, and 622 won, each of which shall be corrected by correction.

1. Basic facts

A. Status of the parties

The plaintiff Park Jong-gu is an employee who entered into a seafarer labor contract to work on the ○○ Construction Co., Ltd. (hereinafter referred to as "○○ Construction") and on the ship listed in the attached list No. 1 (hereinafter referred to as "No. 1) owned by ○○○ Construction. The plaintiff Park Jong-gu is an employee who entered into a seafarer labor contract with ○○○, Seo-gu, Lee Jong-gu, a worker who entered into an employee contract with ○○ Construction, and the defendant is a mortgagee on the ship listed in the attached list No. 2 (hereinafter referred to as "○○ 11") and the construction machinery listed in the attached list No. 3 (hereinafter referred to as "hing boat").

B. The Defendant filed an application for voluntary auction of construction machinery auction under the Incheon District Court No. 2008Ma33018 (hereinafter referred to as "the Incheon District Court is all the Incheon District Court, and only the case number is specified) with respect to the dredging vessel, and the above court (hereinafter referred to as "auction court") filed an application for auction of construction machinery auction under 2008Ma33001 on July 7, 2008, and joined the auction case of construction machinery auction from 2008 to 33018 on August 1, 2008 on August 1, 2008.

C. The Plaintiff’s application for the auction of the vessel by the GabO (Maritime Lien)

원고 박□□은 2008. 7. 14. 박●●, 김●●, 김■■, 김◆◆과 함께 자신은 ○○에 이1호를 근로장소로 하여 ○○건설과 근로계약을 체결한 선원으로서 ○○건설에 대하여 월 급여, 선원법에 기한 퇴직금 및 휴업수당 등 합계 50, 701, 284원의 임금채권이 , 박●●, 김●●, 김■■, 김◆◆은 ○○피 11호를 근로장소로 하여 ○○건설과 근로계약을 체결한 선원으로서 ○○건설에 대하여 월 급여, 선원법에 기한 퇴직금 및 유급휴가금, 실업수당, 해고수당 등 합계 228, 017, 066원의 임금채권이 있다고 각 주장하면서 이○에이1호와 ○○피 11호에 관하여 상법 제777조 제1항 제2호의 선박우선특권에 기하여 임의경매를 신청하였고, 경매법원은 2008. 7. 15. 2008타경34585호로 선박임의경매 개시결정을 하였다 .

(d) Determination on the type to demand a distribution;

On August 6, 2008, the auction court decided the type of demand for distribution in the vessel rental auction case No. 34585 on August 6, 2008 and publicly announced it on October 6, 2008.

E. After filing an application for voluntary auction of ○○ Machinery Co., Ltd. (hereinafter “○○ Machinery Co., Ltd.”) on August 20, 2008, asserting that ○○○○○○ 11 had a maritime lien on the ground of the claim, such as the cost of repair of the vessel, etc., around August 20, 2008, filed an application for a voluntary auction of the vessel with 40924 around 2008. The auction court issued a double decision on the commencement of auction of the vessel on August 21, 2008.

F. Application for demand for distribution by the Plaintiff Park○-○, Seo-○, and Lee ○-○

On October 6, 2008, the period during which to demand a distribution was completed, the Plaintiff Park ○, Seo-○, and Lee ○○ filed a request for a distribution with the court of auction in the case of the auction of the case of the ship auction around 34585, which is within the period during which to demand a distribution, on the ground of the top priority retirement allowance claim under the Guarantee of Workers’ Retirement Benefits Act (hereinafter referred to as “instant demand for distribution”).

G. On December 24, 2008, the auction court held the auction auction case around 34585 ship auction case around 2008 at 2008, the auction court held the auction procedure of this case at the same time (hereinafter referred to as "the auction procedure of this case").

아. 배당표의 작성이 사건 경매절차에서 경매법원은 배당기일인 2009. 7. 24. ○○피11호, 준설선 , ○○에이1호의 총 매각대금 1, 256, 650, 000원과 매각대금 이자 5, 703, 958원에서 집행비용 114, 427, 682원을 공제한 1, 147, 926, 276원에 대하여, ○○건설의 근로자들의 근로기준법상의 최우선 임금 등을 1순위로 하여 선정당사자 장 에게 359, 623, 500원을, 선박우선특권자를 2순위로 하여 박●●, 김●●, 김■■, 김◆◆에게 ○○피11호에 대한 선박우선특권자 ( 임금채권자 ) 로서 228, 017, 066원을, ○○기계에 대하여 ○○피11호에 대한 선박우선특권자 ( 수리비 채권 ) 로서 95, 370, 000원을, ○○피11호와 준설선에 대한 근저당권자를 3순위로 하여 피고에게 잔여액인 464, 915, 710원을 배당하는 내용의 배당표 ( 이하 ' 이 사건 배당표 ' 라고 한다 ) 를 작성하였고, 원고 박□□에 대하여는 ○○에이1호의 매각대금이 집행비용 등으로 모두 사용되고 남은 금원이 없다는 이유로, 원고 박○○, 서○○, 이○○에 대하여는 배당요구 종기일까지 적법한 배당요구가 없었다는 이유로 배당하지 않았다 .

I. The Plaintiffs raised an objection against the distribution on July 31, 2009 regarding the part that the Plaintiffs asserted as the amount of claims against the Defendant regarding ○○ Construction among the amount of dividends against the Defendant on the said date of distribution.

(j) Of the above overdue wages and retirement allowance claims against the plaintiffs' ○○ Construction's wage and retirement allowance claims against the plaintiffs' ○○ Construction, the wages of the last three months and the amount of retirement allowance for the last three years under the Labor Standards Act and the Guarantee of Workers' Retirement Benefits Act are 16,52,50 won (wages 7, 95, 00 won, retirement allowance 8, 557, 500 won), in the case of the plaintiff Park Young-gu, 6,895, 120 won (retirement allowance) in the case of the plaintiff ○○○○○, 3,525, 750 won in the case of the plaintiff ○○○, and 5,378, and 630 won in the case of the plaintiff ○○○.

[Grounds for Recognition] Unsatisfy, entry in Gap evidence 1 through 9 (including each number), the purport of the whole pleadings

2. Determination as to the objection against the distribution by the plaintiff GabO

A. The plaintiff Park Jong-young's assertion

원고 박□□은 ○○에이1호의 선장으로서 ○○피11호의 선원들인 박●●, 김●● , 김■■, 김◆◆과 함께 임금채권 등을 주장하며 선박우선특권에 기하여 선박임의경매 신청을 하였는데, 경매법원은 원고 박□□이 위와 같이 경매를 신청한 채권에 근로기준법 소정의 임금채권 및 근로자퇴직급여보장법상의 퇴직금 채권이 포함되어 있음에도 불구하고 배당요구 종기일까지 배당요구가 없었다는 이유로 ○○에이1호의 매각대금이 소진되어 원고 박□□에게 배당할 금원이 없다며 원고 박□□에게 배당을 하지 않았다. ① 그런데, 원고 박□□은 이 사건 경매절차의 배당요구 종기일 이전에 ○○에이1호와 ○○피11호에 관하여 임의경매신청을 하였으므로, ○○에이1호 뿐만 아니라 ○○피 11호에 관하여도 민사집행법 제148조 제1호에서 규정한 ' 배당요구의 종기까지 경매신청을 한 압류채권자 ' 에 해당하고, 따라서 원고 박□□이 ○○피11호에 관하여 같은 법 제88조 제1항에서 정한 배당요구를 별도로 하지 아니하여도 ○○피11호에 관하여도 당연히 배당받을 채권자에 포함된다. ② 설령 위 임의경매신청을 ○○피11호에 관한 적법한 배당요구로 볼 수 없다고 하더라도, 원고 박□□의 채권의 본질은 임금채권이므로 원고 박□□이 임금채권에 기하여 선박임의경매를 신청한 이상, 경매법원으로서는 비록 원고 박□□에게 2순위인 선박우선특권에 기하여는 배당을 할 수 없더라도 , 오히려 원고 박□□을 1순위의 임금채권자로 취급하여 근로기준법 등의 제 규정에 의하여 배당을 하여야 하는데도 위 원고에게 아무런 배당을 하지 않은 이 사건 배당표는 위법하다 .

(b) Fact of recognition;

원고 박□□이 박●●, 김●●, 김■■, 김◆◆과 함께 이 사건 경매절차의 배당요구 종기일인 2008. 10. 6. 이전인 2008. 7. 14. 임금 및 퇴직금 채권을 근거로 상법상의 선박우선특권에 기하여 ○○에이1호와 ○○피 11호에 대한 임의경매신청을 하였으나, 원고 박□□이 이 사건 경매절차에서 배당요구 종기일까지 선박우선특권에 기한 위 임의경매신청서 등에 선원법, 근로기준법 및 근로자퇴직급여보장법상의 임금우선특권 ( 제2항에서는 이하 ' 임금우선특권 ' 이라 한다 ) 을 따로 주장하거나, 위 임의경매신청서 외에 임금우선특권 있는 채권을 근거로 따로 배당요구를 하지는 않은 사실은 당사자 사이에 다툼이 없거나 앞서 본 증거에 변론 전체의 취지를 종합하여 인정할 수 있다 .

C. Determination as to whether the above plaintiff's request for auction can be seen as a demand for distribution against ○○○11

○○에이1호의 선장인 원고 박□□과 ○○피11호의 선원인 박●●, 김●●, 김■, 김◆◆이 가지는 선박우선특권은 상법 제777조 제1항 제2호에서 정한 ' 선원과 그 밖의 선박사용인의 고용계약으로 인한 채권 ' 에 근거한 것인데, 임금우선특권이 채무자의 모든 재산에 대하여 우선변제적 효력을 가지는 것과는 달리, 상법상의 선박우선특권 ( 이하 ' 선박우선특권 ' 이라 한다 ) 은 선원으로 고용되어 근무한 당해 선박 및 그 부속물 ( 이하 ' 당해 선박 ' 이라고만 한다 ) 에 대하여만 경매신청을 할 수 있고 당해 선박의 경매배당금에 한하여 별도의 배당요구 없이도 우선변제권을 행사할 수 있을 뿐 당해 선박이 아닌 채무자의 다른 재산에 대하여는 그러한 특권이 미치지 않는 것이므로, 원고 박□□과 박●●, 김●●, 김■■, 김◆◆의 선박우선특권에 기한 임의경매신청의 효력은 자신이 고용되어 근무한 당해 선박 ( 원고 박□□의 경우에는 ○○에이1호, 박●● , 김●●, 김■■, 김◆◆의 경우에는 ○○피11호 ) 에만 미치고, 나머지 선박 ( 원고 박●●의 경우에는 ○○피 11호, 박●●, 김●●, 김■■, 김◆◆의 경우에는 ○○에이1호 ) 에 대하여는 미치지 아니한다 ( 대법원 2007. 10. 25. 선고 2007다49229 판결, 위 판결의 원심판결인 부산고등법원 2007. 6. 21. 선고 2007나2978 판결 참조 ) .

However, inasmuch as Article 148 of the Civil Execution Act provides that a creditor entitled to a distribution has filed a request for auction not later than the completion period to demand a distribution, an execution creditor who demanded a distribution, a creditor who demanded a distribution, etc., shall, in the auction procedure, claim his right in accordance with the completion period to demand a distribution, as long as the said provision provides for the same by the completion period to demand a distribution, etc., and the person who intends to receive a distribution shall claim a distribution in the auction procedure. However, the fact that there is no other claim for a distribution as to the dredging vessel based on the claim with the wage privilege under the Labor Standards Act

Therefore, the plaintiff Park Jong-young does not constitute a creditor entitled to dividends under Article 148 of the Civil Execution Act for the proceeds of auction of dredging ships except for subparagraph 1 to ○○○○○, and for the proceeds of auction of dredging ships. Therefore, the above argument by the plaintiff Park Il-young is without merit (the appraised value set forth in subparagraph 1 to ○○○○ is very low compared to the appraised value of ○○○11 and dredging ships, such as the attached list. In such a case, the wage obligee set forth in subparagraph 1 to ○○○ is not limited to an application for a voluntary auction based on a maritime lien, but should have separately demanded a distribution based on his wage claim for ○○○○11 and dredging ships within the completion date of the demand for distribution).

D. Determination on whether the above plaintiff can be treated as the first priority wage creditor (1) is a system created by the equitable demand that the maritime creditor should provide a clear security and protect the maritime creditor in lieu of recognizing the shipowner's limitation of liability, due to the danger accompanying the original maritime company. However, the first priority right system of wages is very high for the public interest as the system is recognized under the sacrifice of the general security right holder in order to secure the minimum standard of living for the workers who are the socially and economically weak, especially in the event the employer goes bankrupt or the employer's property is seized by another creditor. Thus, the second priority right system differs from the legislative purpose thereof. Although the maritime lien is a one-year limitation period, the first priority right of wages can be paid preferentially from the ship on board, the second priority right of wages and retirement allowances for the last three months, but the maritime lien can be limited to the first priority right of wages and retirement allowances for the last three years, and the first priority right of retirement allowances for the retirement claims can be claimed through the auction procedure under Article 88(1) and (2) of the Civil Execution Act.

13. The judgment on whether the application for voluntary auction based on the maritime lien in question can be seen as a demand for distribution by the preferential right of wages, although the preferential right of wages can be made only in the auction procedure. However, such priority order takes precedence over the maritime lien, and its requirements and effects are different. (2) The judgment on whether the application for voluntary auction based on the maritime lien in question can be seen as a demand for distribution by the preferential right of wages.

In light of the position of the precedents established to regard the claim of rights or legal relations specified by the cause of the claim as the subject-matter of lawsuit, the preferential right to wages and maritime lien, which differs from the requirements and effects, shall be deemed independent rights under the substantive law. Therefore, a request for voluntary auction based on the maritime lien submitted without stating any details concerning the preferential right to wages cannot be deemed as a demand for distribution based on the preferential right to wages.

However, the fact that the plaintiff Park Jong-young did not have any other claim on the preferential right of wages in the application for voluntary auction based on the maritime lien from the auction procedure of this case until the completion date of the demand for distribution is as seen earlier.

Therefore, the plaintiff Park Jong-young is entitled to receive a distribution on the basis of the maritime lien for the auction dividends under subparagraph 1 to ○○○○, and does not constitute a creditor entitled to a distribution under Article 148 of the Civil Execution Act based on the preferential right of wages. Therefore, the plaintiff Park Jong-young's above assertion is without merit ( even if the appraisal value under subparagraph 1 is sufficient to ○○○, the maritime lien is subordinate to the preferential right of wages. In such a case, it shall be clearly stated that the wage obligee under subparagraph 1 of ○○ filed an application for a voluntary auction based on the maritime lien and includes a demand for distribution based on the preferential right of wages).

E. Sub-decision

Therefore, it is legitimate to preferentially distribute dividends to the Defendant, except for the sales proceeds under subparagraph 1 of ○○○○, which are all remaining after having been used as execution expenses, etc., by the auction court, for the reason that there is no amount remaining after the sale proceeds under subparagraph 1 of ○○○ is being used as execution expenses.

3. Determination as to the objection against the distribution by the Plaintiff GabO, SOO, and Lee ○○

A. The plaintiff Park ○, O, and Lee Dong-○'s assertion

Although the above plaintiffs had a retirement allowance claim subject to the top priority payment as to ○○ Construction, and demanded a distribution based on legitimate supporting materials, the court of auction asserts that it was unlawful to preferentially distribute the above plaintiffs except for the above plaintiffs from dividends on the ground that the documents submitted by the above plaintiffs do not constitute supporting materials as set forth in the Supreme Court Decision No. 1120, “No. 1120” (No. 97-11) of the Rules of the Trial of the Supreme Court, and sought correction of the distribution schedule of this case.

B. Defendant’s assertion

As to this, the defendant is among the reasons for the judgment of the court below, which stated that the above plaintiffs should attach to the request for distribution based on the worker's right to preferential payment from the established rules of the court.

In this case, the court's final judgment which judged that a claim for distribution is a claim for preferential payment, or without submitting a "written confirmation of overdue wages issued by a local office of the Ministry of Labor". This does not constitute a legitimate demand for distribution, which clearly explains that a claim for distribution is a claim for preferential payment which has preferential rights to all real rights, such as existing collateral security, as in this case, and therefore, it is justifiable to exclude the above plaintiffs from the distribution.

(c) Fact of recognition;

Plaintiff Park ○, ○○, ○○, and ○○○○, within the period of demanding distribution of the instant auction procedure, shall be October 2008.

6. From 2008 to 34585, a retirement allowance claim against the above plaintiffs ○○ Construction is KRW 8,150,000, Plaintiff Park Jong-○, and Plaintiff Seo-○ is KRW 5,370,00, and Plaintiff Lee Seo-○ submitted an application for a demand for distribution stating that the amount of KRW 6,712,50 is KRW 6,50, and Plaintiff Lee Dong-○ submitted an application for a demand for distribution with the documents, and due to the supporting documents, the annual salary contract concluded and prepared between Plaintiff ○○, Seo-○, and Lee Dong-○, and Lee ○ and Lee-○ was signed and prepared between the Plaintiff ○○ and the ○○ Construction, which was signed and executed on September 207, 107, 10, and November 11, 200, Plaintiff Park Jong-○, and Seo-○, upon receiving a demand from the auction court after the completion date of the instant demand for distribution, the Plaintiff’s entire statement of payment to the ○○○ National Labor Court.

(d) Determination.

(1) A person having the right to preferential payment for the completion period of a demand for distribution may only receive the distribution, as shown in the creditor who has an executory exemplification, and the creditor who has made a provisional seizure subsequent to the registration of the decision to commence the request for distribution, only if he/she has made a demand for distribution by the completion period of the request for distribution. In cases where a legitimate demand for distribution has not been made, he/she shall not receive the distribution from the proceeds of sale even though he/she is a person having the right to preferential payment, and even if a person having the right to preferential payment for the demand has made a demand for partial distribution by the completion period of the request for distribution, he/she shall not add or expand any claim that has not been demand after the completion period of the request for distribution (see Supreme Court Decision 200

The above plaintiffs asserted that the right to preferential payment of wages does not necessarily have to prove that they are the wage claims with preferential payment right not later than the completion date of the right to demand a distribution until the completion date of the right to demand a distribution, and that the period of vindication is not later than the confirmation date of the distribution schedule. However, as seen earlier, the above Supreme Court ruling declares that the right to preferential payment of wages shall demand a distribution by the completion date of the right to demand a distribution, but in principle, the right to demand a distribution may receive a preferential distribution. However, if the right to preferential payment of wages did not prove that they are the wage claims with preferential payment right before the commencement date of the auction procedure, even if the right to demand a preferential payment does not prove that they are the wage claims with preferential payment right until the completion date of the right to demand a distribution becomes final and conclusive (see Supreme Court Decision 2002Da52312, Jul. 22, 2004). Thus, the above plaintiffs' above assertion is without merit.

(2) The method for demand for distribution shall be made in writing, specifying the cause and amount of the claim, and such demand for distribution shall be accompanied by an executory exemplification or a copy thereof, and other documents attesting the qualification for demand for distribution (Article 48 of Rules of Civil Execution and Article 88(1) of the Civil Execution Act).

On the other hand, according to Article 1120 of the Supreme Court's established decision, in a case where an employee makes a demand for distribution based on the wage claims and retirement allowance claims under Article 38 of the Labor Standards Act and the right to preferential payment under Article 11 of the Guarantee of Workers' Retirement Benefits Act at the executing court, one of the final and conclusive judgment of the court which judged that the right to demand a distribution is the right to preferential payment under Article 38 of the Labor Standards Act, or the confirmation issued by the local office of the Ministry of Labor, and one of the wages in arrears issued by the local office of the Ministry of Labor. (a) The national pension premium deduction account issued by the employer, (b) the receipt of the national pension premium payment issued by the National Pension Management Corporation; (d) the confirmation of the payment of national pension premiums issued by the National Pension Management Corporation; (e) the confirmation of the acquisition

F. The above paragraph (a) through (d) above provides that a copy of the worker list or wage ledger prepared by the employer (Provided, That in this case, a copy of the above paragraph (a) through (d) above shall also be attached to the materials proving that the employer is unable to obtain the document stated in the paragraph (a) through (d) above due to the reason that the employer has not filed his/her business registration).

However, the issue of whether a worker is a worker under the Labor Standards Act shall be determined based on whether a contract form is an employment contract or a contract for employment, and whether a worker has a subordinate relationship with an employer for the purpose of wages in a business or workplace. The issue of whether a dependent relationship is determined shall be determined by comprehensively taking into account the economic and social conditions, but the circumstances such as whether a basic wage or fixed wage was determined, whether a worker was withheld from the income tax, and whether a worker is recognized as an employee in a social security system, can be determined arbitrarily by taking advantage of the economic superior status of the employer, so such circumstance may not be readily denied the worker's nature only because it is not recognized (Supreme Court Decision 2004Da29736 Decided December 7, 206). Thus, the legislative intent of the right to preferential payment of wages (the claim for wages is the minimum material basis for carrying out the so-called "living life with the worker and his family members, and there is no other way to secure the right to preferential payment from the auction procedure as above.

It is nothing more than an example of more objective materials, and in the event that such materials are not attached, it shall not be deemed that the demand for distribution is unlawful or that the wage creditor who has preferential right to payment has not been substantiated, and it shall not be excluded from the distribution of dividends.

(3) Sub-decisions

In light of the above legal principles, as seen earlier, there is no limitation on the type of document proving the qualification to demand a distribution by a person having preferential right to wages under the Civil Execution Act and the rules of civil execution, so, the Plaintiff Park-○, Seo-○, and Lee ○○, who are the retirement creditors having preferential right to payment for ○ Construction, does not put any limitation on the type of document proving the qualification to demand a distribution by the person having preferential right to wages. Thus, the Plaintiff Park-○,

6. When submitting a written demand for distribution stating the amount of retirement allowance which has not been paid by ○○ Construction, and the amount of the claim for distribution, to which the grounds for the claim for a demand for distribution has not been paid by the auction court, it is reasonable to view that the above plaintiffs are "documents proving the qualifications for a demand for distribution based on the preferential payment right under Article 38 of the Labor Standards Act and Article 11 of the Guarantee of Workers' Retirement Benefits Act, inasmuch as the annual salary contract and the labor contract for the crew and the wage ledger from September 2007 to November 2007 are attached as explanatory materials." Thus, the above plaintiffs are deemed to have made a legitimate demand for distribution under the Civil Execution Act and the rules on civil execution.

In addition, the above plaintiffs are within the scope of the amount of legitimate demand for distribution in the distribution procedure of this case by the completion date of the demand for distribution, and the amount of the retirement allowance for the last three years for which the right to preferential payment was not paid from ○○ Construction was 6,895,120 won in the case of the plaintiff Park ○○○, 3,525, 750 won in the case of the plaintiff Seo-○○, and 5,378, 630 in the case of the plaintiff Lee ○○, as seen earlier, the fact that the amount of the retirement allowance for the last three years, which was the right to preferential payment, was 6,525, 750 won in

Therefore, in the distribution schedule prepared by the auction court around July 24, 2009 at the Incheon District Court 2008, 33018, 2008, 34585 (Joint) around 2008, 40924 (Joint) around 2008, 30924 (Joint), and 3301 (Joint) around 2008, at the request of the above plaintiffs in the distribution procedure for the construction machinery rental auction case, the amount of dividends to the plaintiff Park Jong-○ shall be KRW 6,895, 120, 3,525, 750, and KRW 00 against the plaintiff Seo-○○, 5,378,630, and KRW 464,915, 710, 164, 196, 160, respectively.

4. Conclusion

Therefore, the plaintiff Park Jong-young's claim is dismissed as it is without merit, and all of the claims of the plaintiff Park Il-young, Seo-young, and Lee ○-○ are accepted as reasonable. The judgment of the court of first instance is partially unfair, and the judgment of the court of first instance is modified as above, and it is so decided as per Disposition.

Judges Park Jong-nam

Judges Laos

Judge Choi-hee

A person shall be appointed.