The Nonparty’s bankruptcy trustee

Specialized Construction Financial Cooperative (Law Firm Masan, Attorneys Park Ba-min, Counsel for defendant-appellant)

April 15, 2016

Seoul Central District Court Decision 2015Da140767 Decided December 23, 2015

1. The part against the plaintiff corresponding to the money ordered to be paid under the judgment of the court of first instance shall be revoked.

2. The defendant shall pay to the plaintiff 24,279,832 won with 5% interest per annum from September 2, 2015 to May 18, 2016, and 15% interest per annum from the next day to the day of complete payment.

3. The plaintiff's remaining appeal is dismissed.

4. All costs of the lawsuit shall be borne by the defendant.

5. Paragraph 2 can be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 24,279,832 won with 15% interest per annum from the day after the delivery of a copy of the complaint to the day of full payment (the plaintiff has reduced part of the damages for delay at the trial).

1. Basic facts and the allegations of the Parties

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance. Thus, this part is cited by the main text of Article 420 of the Civil Procedure Act.

2. Determination

The authority to manage and dispose of the bankrupt estate belongs to the bankruptcy trustee (Article 384 of the Debtor Rehabilitation and Bankruptcy Act), and the compulsory execution, provisional seizure or provisional disposition taken against the property belonging to the bankrupt estate based on the bankruptcy claim, shall lose its effect against the bankrupt estate (Article 348 (1) of the same Act).

On the other hand, when the distribution court distributes dividends, it shall deposit the amount of dividends to the creditor of provisional seizure. If the reasons for deposit are extinguished as the judgment on the merits becomes final, the settlement or mediation in the lawsuit is concluded, or the decision in lieu of a recommendation for compromise or mediation becomes final and conclusive, etc., the distribution court shall pay the deposit money to the creditor of provisional seizure (see Articles 160(1)2 and 161(1) of the Civil Execution Act). Thus, barring any special circumstance, the claims of the creditor of provisional seizure who ordered payment in the final judgment, etc. on the merits shall be extinguished at the time of the final and conclusive judgment, etc. on the merits to the extent that the amount of dividends is appropriated (see Supreme Court Decision 2012Da65874, Sept. 4,

In the above legal principles, the compulsory execution, provisional seizure, or provisional disposition against the property belonging to the bankrupt foundation based on bankruptcy claim becomes null and void against the bankrupt foundation. In the case of compulsory auction against the real estate, the compulsory auction procedure is terminated by paying the amount of dividends to the creditors pursuant to the distribution schedule, and if the amount of dividends has not yet been paid to the creditors pursuant to the distribution schedule, the remaining amount of dividends remains null and void as the property belonging to the bankrupt estate is the compulsory execution, provisional seizure, or provisional disposition against the provisional seizure creditor, and if the deposit is distributed to the provisional seizure creditor and the provisional seizure creditor did not receive it from the provisional seizure creditor, the deposit is also null and void as the property belonging to the bankrupt estate. Accordingly, in special circumstances such as where the debtor is declared bankrupt while the judgment on the merits became final and conclusive, the right to claim payment of the deposit becomes void, and the compulsory execution, provisional seizure, or provisional disposition against the creditor becomes null and void even if the judgment on the merits becomes final and conclusive.

Therefore, even though the deposit money of this case is a property belonging to the bankrupt estate, the defendant voluntarily withdrawn from the court and took profits without any legal cause, and thus, the plaintiff suffered losses. Accordingly, the defendant is obligated to pay to the plaintiff 24,279,832 won and damages for delay calculated at the rate of 5% per annum under the Civil Act from September 2, 2015, which is the day following the delivery of the copy of the complaint, until May 18, 2016, which is the date of the final judgment of the court, to the date of the full payment, to the date of the full payment.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the above scope of recognition, and the remaining claims are dismissed without merit. Since the judgment of the court of first instance is partially unfair with the conclusion, the part against the plaintiff corresponding to the order to pay the above amount among the judgment of the court of first instance shall be revoked, and the defendant shall be ordered to pay the above amount, and the remaining appeal of the plaintiff shall be dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee J-young (Presiding Judge)