[1] Whether the defendant who did not raise an objection in a lawsuit of demurrer against distribution can deny the existence of the plaintiff's claim itself (affirmative)

[2] The method of restoring the original state following the revocation of fraudulent act in case where the garnishee has deposited the monetary claims by competition with the seizure of the claims acquired by the beneficiary of the assignment of claims based on the right to collateral security, which is a fraudulent act

[1] In a lawsuit of demurrer against a distribution, the defendant can file all arguments that can dismiss the plaintiff's claim with a defensive method, and even if the defendant did not raise an objection against the plaintiff on the date of distribution, the defendant can deny the existence of the plaintiff's claim as a ground for rejection of the plaintiff's claim.

[2] In case where a beneficiary has already received dividends in reality before a fraudulent act is revoked by a creditor, unlike the case where the beneficiary participated in dividends based on the right to collateral security that was acquired by a debtor's fraudulent act in an auction procedure and the distribution schedule became final and conclusive, but the creditor has not actually received dividends due to the creditor's provisional disposition prohibiting the payment of dividends, etc., the creditor may claim by means of compensation for the equivalent of his/her claim amount, out of the amount that he/she received by the beneficiary or subsequent purchaser by means of restitution method. However, in case where the third debtor deposits monetary claims due to concurrent seizure of claims, even though the third debtor's obligation ceases to exist, it is merely that the third debtor's creditor acquires the right to claim the payment of deposit money, but the effect of seizure remains against the debtor's right to claim the payment of deposit money. Therefore, restitution following the revocation of fraudulent act should be made by transferring the right to claim the payment of deposit money to the creditor instead of monetary

[1] Article 154 of the Civil Execution Act / [2] Article 406 (1) of the Civil Act

[2] Supreme Court Decision 97Da8687 delivered on October 10, 1997 (Gong1997Ha, 3420) Supreme Court Decision 2003Da6200 delivered on January 27, 2004 (Gong2004Sang, 434)

Plaintiff (Appointed Party)

Defendant

Busan High Court Decision 2002Na13980 delivered on January 8, 2004

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff (Appointed Party).

1. Regarding ground of appeal No. 1

In a lawsuit of demurrer against a distribution, the defendant can make all arguments that can dismiss the plaintiff's claim as defense, and even if the defendant did not raise an objection against the plaintiff on the date of distribution, the defendant can deny the existence of the plaintiff's claim as a ground for rejection of the plaintiff's claim.

Although the defendant did not raise any objection against the plaintiff (appointed party) and the remaining designated parties (hereinafter referred to as the "designated parties"), the court below's decision that the preserved claims did not exist after examining the existence of the preserved claims by the designated parties who are provisional seizure creditors in accordance with the defendant's assertion is just, and there is no error in the misapprehension of legal principles as to the lawsuit of demurrer against distribution.

2. As to the grounds of appeal Nos. 4 and 5

On September 10, 199, the court below rejected the allegation that there was no error in the misapprehension of legal principles or in the misapprehension of legal principles as asserted in the grounds of appeal against the non-party 2's grounds of appeal, on June 26, 2000, the court below rejected the claim against the non-party 2, on the ground that the non-party 2 conspired with the non-party 2, who acquired the claim against the non-party 1, the non-party 1, the non-party 2, and the non-party 2, for the reason that the non-party 2 was unable to collect the claim against the non-party 1, the non-party 1, the non-party 1, the non-party 2, the non-party 2, in collusion with the non-party 2, who acquired the claim against the non-party 2.

3. As to the grounds of appeal Nos. 2 and 3

In case where a beneficiary has already received dividends in reality before a fraudulent act was revoked by a creditor, the distribution schedule was finalized by participating in dividends based on a claim on the right to collateral security, which was acquired by a debtor through a fraudulent act with a debtor in an auction procedure, but unlike the case where dividends have not been actually paid due to a creditor's provisional disposition prohibiting the payment of dividends, etc., the creditor may claim by means of recovery the equivalent amount of his claim out of the amount received by the beneficiary or subsequent purchaser as a means of restitution (see Supreme Court Decisions 97Da8687, Oct. 10, 1997; 2003Da6200, Jan. 27, 2004, etc.). However, in case where a third-party debtor has deposited a monetary claim with a seizure of a claim, the third-party debtor's creditor is merely entitled to claim the payment of the deposit, but it is not equivalent to the acquisition of the debtor's right to claim the payment of the deposit, and thus the creditor's right to claim the payment of the money remains in a way to restore.

Therefore, in case where the assignment of the right to collateral security of this case is revoked by fraudulent act, the designated parties can be ordered not to compensate for the value of the right to claim the transfer of the deposit money, not to compensate for the transfer of the right to claim the transfer of the right to claim the transfer of the right to claim the transfer of the right to claim the transfer of the right to claim the transfer of the right to claim the transfer of the right to claim the transfer of the right to claim the transfer of the right to claim the transfer of the right to claim the transfer of the right to claim the transfer of the right to claim the transfer of the right to claim the transfer of the right to claim

The ground of appeal concerning the existence of the preserved claim of provisional seizure is without merit, on the premise that the designated parties either acquired or could obtain the claim of compensation for value arising from the payment of money due to the cancellation of the assignment of the claim of the collateral security right of this case, since the claim of compensation for value is identical to the preserved claim of this case as the preserved claim of the provisional seizure of this case.

Although the court below's explanation is somewhat inappropriate, it is proper to conclude that there is no preserved claim of this case, and there is no error in the misapprehension of legal principles as to preserved claim of provisional seizure or in the misapprehension of legal principles as to compensation for value due to the revocation of fraudulent act.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)