[1] In a case where a designated party has been selected in a distribution procedure, where the principal and the other party against the distribution schedule and the designated party, who is the creditor, have raised an objection against the designated party who is another creditor in the distribution procedure as to the entire amount indicated as being distributed, whether only the designated party has the standing to be a party to the lawsuit of demurrer against distribution (affirmative in principle) / Whether only the designated party may seek correction of the entire amount stated as being distributed to the designated party, including the portion attributable to the designated party, by filing a lawsuit of demurrer against distribution with the debtor or other creditors (affirmative in principle)

[2] The scope of allowing correction of a party indication, and whether an application for correction of a party indication without identity is legitimate (negative)

[3] In a case where the contents of the court's exercise of the right to know and the legal effect of which the party did not recommend the submission of a document suggesting facts or means of attack and defense, whether there is an error of law in the exercise of the right to know (negative) / Whether the court's decision on all allegations or means of attack and defense should be indicated on the grounds of written judgment (negative)

[1] Articles 151 and 154 of the Civil Execution Act / [2] Articles 51 and 260 of the Civil Procedure Act / [3] Articles 136, 208, and 423 of the Civil Procedure Act

[1] Supreme Court Decision 2015Da202490 Decided October 29, 2015 (Gong2015Ha, 1787) / [2] Supreme Court Decision 94Da61243 Decided March 22, 1996 (Gong1996Sang, 1338) / [3] Supreme Court Decision 92Da3892 Decided May 222, 1992 (Gong1992, 1978), Supreme Court Decision 2006Da218 Decided July 10, 2008 (Gong208Ha, 1146), Supreme Court Decision 201Da87174 decided April 26, 2012 (Gong2012Sang, 863)

Plaintiff (Appointed Party)

Defendant (Appointed Party) 1 and 8 others (Law Firm Jeong, Attorneys Kang-sik et al., Counsel for the defendant-appellant)

Defendant 10 and six others

Busan High Court Decision 2014Na8165 decided September 3, 2015

The appeal on the part of the judgment of the court below regarding the remaining Defendant Appointors except the Defendant (Appointeds) is dismissed. The part of the judgment of the court below concerning the Defendant (Appointeds) and the Defendants among the remaining Defendant Appointors except the Plaintiff (Appointeds) among the Plaintiff Appointors is reversed, and the judgment of the court of first instance on this part is revoked, and this part of the lawsuit is dismissed. The remaining appeal is dismissed. The costs of appeal are assessed against the Plaintiff (Appointeds).

1. The grounds of appeal are examined ex officio prior to the determination.

A. An objection against a distribution schedule shall be raised against a debtor and a creditor who had been present on the date of distribution and a creditor who has been recorded on the distribution schedule. However, if the selected parties are selected in the distribution procedure, only the designated parties who are not the designated parties are in the position of receiving dividends as such creditors. Thus, only the designated parties are the parties and the other party who are entitled to raise an objection against the distribution schedule.

In addition, in cases where a designated party, who is a creditor, raises an objection against the designated party who is another creditor, against the entire amount that he/she received, the joint interest between each designated party and the relevant designated party does not extinguish. Thus, barring special circumstances such as the cancellation of the selection act against the executing court or the death of the designated party, the designated party, who is not the designated party, has the standing to file a lawsuit of demurrer against the distribution schedule as the subject of objection against the distribution schedule and the creditor who is the other party.

Therefore, barring such special circumstances as above, a debtor or other creditor who has raised an objection against the designated party against the total amount stated as being distributed to him/her may file a lawsuit of demurrer against distribution with the designated party as the defendant and seek correction of the total amount stated as being distributed to the designated party, including the part to be reverted to the designated party (see Supreme Court Decision 2015Da202490, Oct. 29, 2015).

On the other hand, the parties concerned shall comprehensively confirm and confirm the contents and causes of the indication and the claim recorded in the complaint, and the correction of the party’s indication is permitted only to the extent that the party’s identity is recognized as a matter of principle. Thus, an application for correction of the party’s indication is unlawful (see Supreme Court Decision 94Da61243 delivered on March 22, 196

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) In the Busan District Court’s distribution procedure (hereinafter “instant distribution procedure”), the Plaintiff (Appointed Party) and the Defendant (Appointed Party) were selected by each of the pertinent designated parties as indicated in the attached list. On October 17, 2011, the distribution court drafted a distribution schedule by stating that only the Defendant (Appointed Party) and the Defendants and Nonparty 1 (Appointed Party) except the Plaintiff (Appointed Party) pay dividends to the Defendants (Appointed Party) and Nonparty 1 (Appointed Party). The Plaintiff (Appointed Party) appeared at the date of distribution on the distribution date and raised an objection against the entire amount of dividends against the Defendant (Appointed Party) and the Defendants (Appointed Party) on the distribution schedule.

(2) On October 21, 201, the Plaintiff’s Designating Party (Appointed Party) appointed the Plaintiff as the Designating Party, and filed a lawsuit of demurrer against the instant objection with Nonparty 2, 3, 4, 5, 6, 7, 8, and 9 (hereinafter collectively referred to as “Defendant 1 and 8, each of the Defendant 10, 11, 12, 13, 14, 15, and 16 ( collectively referred to as “Defendant 10 and 6”) and Nonparty 1, the Plaintiff (Appointed Party) changed the Plaintiff’s correction of the description and claim to Nonparty 1 and Nonparty 1 (hereinafter referred to as “party Nonparty 1”) on November 9, 2011. The Plaintiff did not submit the Defendant’s correction of the description and claim to Nonparty 1 as Nonparty 8 and Nonparty 1 (hereinafter referred to as “party Nonparty 1”).

(3) The court of first instance accepted the application for correction of the above party’s indication, and the Defendant (Appointed Party) 1 and 8, Defendant 10, and Defendant 6 and Nonparty 1 (Appointed Party) sent a copy of the complaint of this case and a notice on the date for pleading, etc. as Defendant’s qualification. The part of the lawsuit against Nonparty 1 (Appointed Party) by the Plaintiff (Appointed Party) was withdrawn on September 24, 2014, and the decision of the court of first instance was rendered on October 15, 2014 that all of the claims of the Plaintiff (Appointed Party) were dismissed. The decision of the first instance indicated the Defendant (Appointed Party) as “Defendant (Appointed Party)” and attached a list of the appointed parties against the Defendant (Appointed Party).

(4) As to the judgment of the first instance, the Plaintiff (Appointed Party) appealed, and the lower court also held that the Defendant (Appointed Party) and the Defendants were served with a notice on the date of pleading, etc. at the appellate court in the capacity of the Defendant in the instant case, and the Plaintiff (Appointed Party) dismissed all appeals on September 3, 2015. The judgment of the lower court also indicated the Defendant (Appointed Party) and eight others as “Defendant (Appointed Party)” and attached a list of the appointed parties against the Defendant (Appointed Party).

C. First, we examine the part of the Defendant’s designated parties, excluding the Defendant (Appointed Party) 1 and eight others (hereinafter “Bs designated parties”), among the Defendant’s designated parties, regarding the remaining Defendant’s designated parties (hereinafter “Defendant’s designated parties”).

(1) Examining the foregoing facts in light of the aforementioned legal doctrine and the evidence duly admitted, the following is determined.

(A) In light of the facts not attached to the indication recorded in the instant complaint and the instant complaint and the written application for the correction of the indication of the parties to the instant complaint, etc., the Defendant of the instant lawsuit of demurrer against distribution is deemed to be the Defendant (Appointed Party) 1 and 8, Defendant 10 and Nonparty 6 and Nonparty 1, who were recorded as the creditors who were distributed to the distribution schedule in the instant distribution procedure.

(B) The identity of the party to the lawsuit cannot be acknowledged between the aforementioned “Defendant 1 and eight persons” and the “Defendant 1 and eight persons (Appointed Party)” selected by each of the Defendant’s designated parties indicated in the attached list, including those who were not drawn up as the creditors who were distributed to the above distribution schedule, and the “Defendant 1 and eight persons” cannot be said to be the identity of the party to the lawsuit. Thus, the application for correction of the party’s indication to correct the “Defendant 1 and eight persons” to the “Defendant 1 and eight persons (Appointed Party)” cannot be said to be permitted.

(2) Nevertheless, the first instance court and the lower court accepted the application for correction of the indication of the parties in this case, and rendered a decision on the merits of the claim against the remaining Defendant Appointors through the oral proceedings. This part of the judgment of the first instance and the lower court are not effective as a judgment on the part without the continuation of litigation.

(3) Therefore, the appeal on the remaining part of the judgment of the court below as to the Defendant’s Appointors is unlawful, and its defects cannot be corrected, and thus, it shall be dismissed.

D. Next, we examine the remainder of the appeal by the Plaintiff Appointers except for the Plaintiff (Appointed Party, Plaintiff (Appointed Party), and Plaintiff Appointers (hereinafter “Plaintiffs”) from among the Plaintiff Appointers (hereinafter “the Plaintiff”).

Examining the aforementioned factual relations in light of the aforementioned legal doctrine and the evidence duly admitted, the Plaintiff is standing to sue in the lawsuit of demurrer against the distribution of this case, since only the Plaintiff, who was selected as the designated party and exercised the right as the creditor entitled to receive dividends in the instant dividend procedure, has standing to sue in the lawsuit of demurrer against the distribution. As such, the remainder

Nevertheless, the first instance court and the lower court determined that the lawsuit of the remaining Plaintiff Appointors was legitimate. Accordingly, the judgment of the first instance against the Defendants except the dismissed part of the above sub-paragraph (c) above (hereinafter “Defendant 1 and eight others and the remaining Defendants”), and the judgment of the lower court that maintained that part of the remaining Plaintiff Appointors, should no longer be maintained, and thus be reversed. Accordingly, it is sufficient for the Supreme Court to directly render a judgment.

2. Of the instant lawsuit, the Plaintiff’s grounds of appeal as to Defendant 1 and eight others and the remainder Defendants (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined.

A. The court shall decide whether a factual assertion is true in accordance with logical and empirical rules, based on the ideology of social justice and equity, by taking into account the purport of the entire pleadings and the results of the examination of evidence (Article 202 of the Civil Procedure Act). The facts duly confirmed by the court of final appeal that the court below did not go beyond the bounds of the principle of free evaluation of evidence (Article 432 of the same Act).

In addition, the court's exercise of the right to ask for a vindication does not constitute an unlawful exercise of the right to ask for a vindication, even if the party did not recommend the submission of the requirements or means of attack and defense as to the legal effect that was not asserted by the party, since the court's exercise of the right to ask for a correction of inconsistency or incomplete allegations by the party and demands the submission of evidence in order to clarify the case (see Supreme Court Decision 92Da3892 delivered on May 22, 192, etc.).

In addition, the reasoning of the written judgment is sufficient to indicate the judgment on the party’s allegations and other means of offence and defense to the extent that it can be recognized that the text is justifiable, and it is unnecessary to determine all allegations by the party or all means of offence and defense (Article 208 of the Civil Procedure Act). Even if the specific and direct judgment on the matters alleged by the party to the judgment is not indicated in the court judgment, it cannot be deemed an omission of judgment if it can be known that the assertion was accepted or rejected in light of the overall purport of the reasoning of the judgment, and even if it is obvious that the assertion would be rejected even if the judgment was not actually made, there is no error of omission of judgment due to the lack of influence on the conclusion of the judgment (see Supreme Court Decisions 2006Da218, Jul. 10, 2008; 2011Da87174, Apr. 26, 2012)

B. The lower court, on the grounds indicated in its reasoning, determined as follows.

(1) On October 24, 2001, Busan District Court Decision 2001Kahap1874, the designated parties, including Defendant 7, appointed Defendant 7 as the obligee, and applied Nonparty 2 as the obligor. On October 24, 2001, Nonparty 2 (hereinafter “instant deposit claim”) received a provisional attachment decision (hereinafter “instant provisional attachment decision”).

Defendant 7, on November 22, 2010, ordered the Busan District Court to file a lawsuit with the Busan District Court No. 2010Kab2733 on December 20, 2010, filed an application for mediation against ○○○○ Investment Finance Emergency Countermeasure Committee (hereinafter “non-Subrogation”) and Nonparty 2 as Busan District Court No. 2010 Ma11433 on December 20, 201. During the period of the application for mediation, Defendant 7, who is the appointed party, was appointed on January 2 and February 201, as the representative of Nonparty 2 and Non-Subrogation and Non-Subrogation 2 jointly and severally paid the claim amount and delay damages for the provisional seizure decision to the aforementioned designated parties including Defendant 7, but the compulsory execution is limited to the deposit claim of this case (hereinafter “instant agreement”).

(2) It is reasonable to view that the claim based on the agreement of this case, which is the subject matter of lawsuit added to the modification of the claim in Busan District Court Decision 201Gahap9555), is the subject matter of lawsuit filed by Defendant 7 against non-Subrogation and non-party 2 as the designated party to the provisional attachment decision of this case, and the claim for the distribution amount, etc. in the decision of the court below ( Busan District Court 201Gahap9955) as the subject matter of lawsuit, is recognized as having the identity of the claim, since all of the claims based on the agreement of this case were different resolution methods as to disputes over the same living facts or the same economic interests. Among the designated parties of Defendant 7, the remaining designated parties except the non-party 3 are within 10 years from October 24, 201, which is the date of the provisional attachment decision of this case and the period of lawsuit under the above order for provisional attachment of this case. Therefore, it cannot be said that the plaintiff asserted the ground for revocation of the provisional attachment decision of this case.

(3) The evidence submitted by the Plaintiff alone is insufficient to recognize that the agreement in this case was concluded by non-Subrogation, non-party 2, and defendant 7's collusion. Thus, the Plaintiff's assertion that the agreement in this case was invalid since the agreement in this case permits compulsory execution against the claims owned by others is without merit.

(4) The revocation of a fraudulent act shall be filed within one year from the date on which the grounds for revocation become known, and five years from the date on which the juristic act occurred, and such revocation of a fraudulent act can only be filed by means of filing a lawsuit with the court, and cannot be asserted as a means of attack and defense in the lawsuit. The Plaintiff’s assertion that the agreement between the designated parties of Defendant 7 and Nonparty 2 constituted a fraudulent act and that the revocation and restitution of the provisional attachment decision of this case constitute a fraudulent act is clearly recorded in the record, and thus, the Plaintiff’s assertion on this part is without merit.

C. Of the allegations in the grounds of appeal, we cannot accept the allegation that the lower court’s determination on fact-finding is merely an error of the selection of evidence and determination on the value of evidence belonging to the free trial of the fact-finding court.

In addition, according to the reasoning of the judgment of the court below, since the provisional attachment decision of this case was made prior to the transfer of non-party 2's non-party 2's claim against the deposit claim of this case, unless the validity of the provisional attachment decision of this case is extinguished, the assignment of claims cannot be asserted against the designated party 7, who is the provisional attachment obligee, and eventually, it cannot be limited to the exercise of the right to demand a distribution of the agreement of this case based on the provisional attachment decision of this case and the deposit money of this case by defendant 7 concerning the deposit claim of this case, other person who is not a debtor for provisional attachment, or the above assignment of claims. In addition, in light of the above legal principles and evidence duly admitted, even if some of the reasoning of the judgment of the court below are insufficient, the judgment of the court below that reached the above conclusion is contrary to the principle of free evaluation of evidence against logical and empirical rules, and there is no error of law by misunderstanding the legal principles as to the exercise of the right to revoke and the exercise of the right to demand a distribution

The Supreme Court precedents cited in the grounds of final appeal are different from this case, and thus are inappropriate to be invoked in this case.

3. Therefore, the appeal as to the remaining part of the judgment of the court below as to Defendant 1 and eight others is dismissed, and the remaining part against Defendant 1 and the remaining Defendants is reversed, and the judgment of the court of first instance as to this part is revoked, and this part of the lawsuit is dismissed. The remaining appeals are dismissed, and the costs of appeal are assessed against the Plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench

[Attachment] List of Appointeds: omitted

Justices Park Sang-ok (Presiding Justice)