Plaintiff (Law Firm Barun, Attorney Park Jae-hwan, Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Jong-soo, Counsel for defendant-appellant)

May 11, 201

1. Of the distribution schedule prepared by the above court on October 20, 2010 with respect to the case of applying for a auction of real estate auction in the Chuncheon District Court Gangnam Branch 2009, 883, it is corrected that the amount of dividend 28,172,578 won against the plaintiff is KRW 48,242,578, and the amount of dividend 20,070,000 against the defendant is deleted.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. The non-party 1 (the non-party to the judgment of the Supreme Court) who is the owner of the 991 square meters (hereinafter “the instant real estate”) in the order-based Yeung-si, Gangseo-gu, Seoul Special Metropolitan City (number 1 omitted) was deceased on December 12, 2007, and the Plaintiff and the non-party 7, 8, and 9 (hereinafter “Plaintiff, etc.”) jointly succeeded to the property.

B. On January 30, 2008, the Seoul Family Court 2008Hun-Ma1267, the Plaintiff, etc. filed a request for a qualified acceptance and filed a request for a qualified acceptance, and the report on the qualified acceptance was accepted on January 30, 2008. On June 10, 2008, the Plaintiff was decided to appoint the Plaintiff as an administrator of inherited property as an administrator of inherited property. The list of property attached to the written judgment on the acceptance of the report on the qualified acceptance was recorded as a small property, and the Defendant, Nonparty 6,

C. On December 7, 2007, before Non-party 1 died, the defendant applied for provisional seizure of which amount is KRW 20,070,000,000 for the claim amount as to the real estate of this case as the Gangseo District Court 2007Kadan14960 on December 7, 2007, which was before Non-party 1 died, and the entry registration was completed on the same day.

D. On August 27, 2008, the Defendant filed a lawsuit against the Plaintiff, etc. (Seoul Northern District Court 2008Gahap2320, Seoul Northern District Court 2008), and sentenced that “the Plaintiff, etc. shall pay KRW 5,017,50, and delay damages to the Defendant within the scope of the property inherited from Nonparty 1,” and the said judgment became final and conclusive around that time.

E. The Plaintiff, as an administrator of inherited property, filed an application for a formal auction under Article 274(1) of the Civil Execution Act with respect to the real estate in this case and the real estate in Gangseo-si (number 2 omitted) Park 192m2, which is the inherited property, for the purpose of liquidation for the repayment to the inheritance obligee, and the real estate in this case and the real estate in Gangseo-si (number 2 omitted), and the gold-ri (number 3 omitted), which is the Gu in Gangseo-si, Gangseo-si, and the forest land 17m2.

F. On May 8, 2009, the Defendant submitted a claim statement claiming the principal amount of the claim for an advance payment amounting to KRW 20,070,000 and damages for delay in the auction procedure.

G. On October 20, 2010, the executing court distributed KRW 20,070,000, out of KRW 30,132,456, which was the remaining 30,132,456, out of the proceeds of the sale of the instant real estate, to the Defendant who is the provisional attachment authority, one in the order of priority, and the remaining KRW 10,062,456, and the remaining KRW 28,172,578, which was the total amount of the proceeds of the sale of the real estate, was distributed to the Plaintiff.

H. The Plaintiff filed an objection to the amount distributed by the Defendant and filed a lawsuit of demurrer against distribution within a lawful period.

[Ground for Recognition] Facts without dispute, Gap 1 through 3, 5, 6 evidence, Gap 10 through 18 evidence, Gap 22-2, Gap 48 evidence, Eul 1-4, Eul evidence 1 to 4, and the purport of the whole pleadings.

2. The parties' assertion

A. The plaintiff's assertion

The plaintiff, as an administrator of inherited property, is liable for equal repayment with inherited property to inheritance creditors, and applied for the formal auction of this case for the repayment thereof. Since it is improper to distribute dividends to the defendant who is only one of the general inheritance creditors in the auction procedure of this case, the distribution schedule of this case shall be corrected as stated in the order.

B. Defendant’s assertion

Although it is not permitted to demand a distribution by a general creditor who has effected a provisional seizure after the registration of the decision to commence the auction in the formal auction, the distribution of dividends to the creditor who has completed the provisional seizure of real estate before the registration of the decision to commence the auction is lawful.

3. Determination

(a) When an inheritor has made a qualified acceptance, he/she shall publicly announce the fact of a qualified acceptance and the fact that he/she should report his/her claims within a certain period to the general creditors within five days from the date of such qualified acceptance, and give a peremptory notice to any creditor known to him/her to report his/her claims (Article 1032(1) and (2) and Article 89 of the Civil Act), and repay claims in proportion to the amount of claims to the reported creditors and creditors known to him/her within the period after the period of public notice expires (Article 1034(1) of the

B. In addition, an inheritor may apply for an auction under the Civil Execution Act when it is necessary to sell all or part of the inherited property to repay the inherited property (Article 1037 of the Civil Act). Unlike an auction to exercise a security right (hereinafter referred to as “voluntary auction”) or a compulsory auction, such formal auction is conducted for the purpose of preserving or arranging the price of a specific property in accordance with the procedure of voluntary auction (Article 274(1) of the Civil Execution Act).

C. Considering the above purport of the formal auction system, in principle, it is reasonable to not allow dividends to general creditors in the formal auction procedure. This is because, as in the instant case, the formal auction procedure applied by an administrator of inherited property by changing the subject matter managed into money and having the purpose of equal repayment to inheritance creditors, making distributions in the realization procedure is not appropriate in its nature and there is a risk not to achieve the purpose of realization. Therefore, in the instant case, it accords with the purport of the system that the administrator of inherited property delivers proceeds from sale to the administrator of inherited property so that the administrator of inherited property can make a lump sum repayment to the creditors in accordance with the procedures for repayment of dividends not exceeding 1034 of the Civil Act, and it is reasonable in terms of equity with other creditors. The Defendant, who is a general creditor, completed the provisional seizure before the decision of commencement of the auction

4. Conclusion

Thus, the defendant should be excluded from the dividends of this case, and the amount of dividends against the defendant should be distributed to the plaintiff who is an administrator of inherited property. Thus, the plaintiff's claim is justified.

Judges Maximumization