[1] Whether a demand for distribution based on the original copy of an executory title of debt with respect to a bill has the effect of interrupting extinctive prescription of the underlying claim in a case where a bill is received in order to secure the payment of the underlying claim (affirmative)

[2] In a case where an obligor does not raise any objection by the auction price due to a creditor's demand for distribution with an executory exemplification of a claim with an executory title for which the extinctive prescription has expired, whether it may be deemed that the waiver of the benefit of extinctive prescription against the claim for a bill is possible (affirmative with qualification), and whether the extinctive prescription period for the claim for which the extinctive prescription has expired again (affirmative)

[1] In the event a creditor has exercised his right by provisional seizure of the debtor's property as the right to preserve a bill between the parties to whom a bill has been issued in order to secure the payment of a cause claim, the statute of limitations for such cause claim is effective. This legal principle also applies to the case where the creditor has exercised his right by seizing the debtor's property as the claim for a bill claim. Meanwhile, the creditor who has an executory title may apply for compulsory auction on this basis. Meanwhile, in the case where the creditor files an application for a demand for distribution by using the auction procedure commenced by another creditor at the request of another creditor intends to actively realize his right based on the name of the debtor, the act of filing an application for a demand for distribution is identical to the application for a compulsory auction. Thus, in the real estate auction procedure, the demand for distribution by the creditor who has an executory title is equivalent to the seizure under Article 168 subparagraph 2 of the Civil Act, and it becomes effective to suspend the extinctive prescription for a claim related to a demand for distribution.

[2] In the real estate auction procedure requested by another creditor, if a creditor who has a title of debt with executory power, applies for a demand for distribution on the ground of a bill for which extinctive prescription has already been completed, and if the successful bid price of real estate was distributed to the creditor demanding distribution, and the debtor did not raise any objection until it is appropriated for partial repayment of the obligation, barring special circumstances, such as the debtor was unaware of the progress of the auction procedure, the debtor may be deemed to waive the benefit of extinctive prescription against the bill claim, and it is reasonable to deem that the extinctive prescription period of

[1] Article 168 subparagraph 2 of the Civil Code, Articles 7 and 17 of the Bills of Exchange and Promissory Notes Act, Articles 605 and 728 of the Civil Procedure Act / [2] Article 184 of the Civil Code, Articles 605 and 728 of the Civil Procedure Act

[1] Supreme Court Decision 99Da16378 delivered on June 11, 1999 (Gong1999Ha, 1397) / [2] Supreme Court Decision 2001Da3580 delivered on June 12, 2001 (Gong2001Ha, 1586)

Plaintiff

Defendant 1 and one other

Changwon District Court Decision 99Na8425 delivered on April 20, 2000

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

We examine the grounds of appeal.

In the event a creditor exercises his/her right by provisionally seizing the debtor's property as a right to preserve a bill between the parties to whom a bill has been issued in order to secure the payment of a underlying claim, the statute of limitations for such underlying claim is effective (see, e.g., Supreme Court Decision 9Da16378, Jun. 11, 199). This legal principle also applies in a case where a creditor has exercised his/her right by seizing the debtor's property as a claim claim; on the other hand, a creditor holding an executory title may file an application for compulsory auction; on the other hand, a creditor who has an executory title may file an application for compulsory auction; and on the other hand, an application for a demand for distribution by using the auction procedure commenced by another creditor is also the same as an application for compulsory auction. Thus, the demand for distribution by a creditor holding an executory title in real estate auction procedure is equivalent to the seizure under Article 168 subparagraph 2 of the Civil Act, and becomes effective to interrupt the statute of limitations for a demand for distribution.

In addition, in the real estate auction procedure requested by another creditor, if a creditor who has a title of debt with executory power, applies for a demand for distribution on the ground of a bill for which extinctive prescription has already been completed, and if the auction price of real estate was distributed to the creditor demanding distribution, and the debtor did not raise any objection until appropriated for partial repayment of the debt, barring special circumstances, such as the debtor was unaware of the progress of the auction procedure, the debtor may be deemed to waive the extinctive prescription period for the bill claim (see Supreme Court Decision 2001Da3580, Jun. 12, 2001). It is reasonable to view that the extinctive prescription period for the underlying claim will resume from that time.

According to the reasoning of the judgment below and the record, the plaintiff kept 65 million won as land price for the non-party 1 on June 30, 1983 and agreed to return it on September 15, 1984. The non-party 1 issued one promissory note with the maturity of 65 million won to the plaintiff on August 30, 1985, and one promissory note with the maturity of 65 million won to secure the payment of the above money. The plaintiff entrusted the non-party 2 with the preparation of a notarial deed to the non-party 1 as the principal and interest of the non-party 1 as the beneficiary and the 6th of the 9th of the 9th of the 9th of the 9th of the 196th of the 196th of the 196th of the 19th of the 19th of the 1st of the 196th of the 1st of the 196th of the 1st of the 1st of the 6th of the 19th of the 1st of the 196th of the notarial.

Although the court below's decision that the extinctive prescription of the loan claim, which is the underlying claim for the bill related to the demand for distribution, was interrupted in light of the above legal principles, it is just in its conclusion and it is not erroneous in the misapprehension of legal principles as to the demand for distribution based on the authentic deed of a promissory note and the extinctive prescription of the underlying claim. The ground of appeal as to this point is rejected.

Therefore, all appeals are 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 Seo-sung (Presiding Justice)