[1] In a lawsuit of demurrer against distribution, the distribution of burden of proof as to grounds for objection against distribution

[2] The applicable law to voluntary subrogation of the secured claim secured by a maritime lien

[3] The governing law on subrogation of seafarer's wage claim

[4] The court's measures where it is impossible to confirm the contents of foreign law applicable to legal relations containing foreign elements

[1] The burden of proof as to the grounds for objection to a distribution in a lawsuit of demurrer is in accordance with the principle of distribution of the burden of proof in general civil procedure. In a case where the plaintiff asserts that the defendant's claim has not been constituted, the defendant is liable to prove the facts of the cause of the claim, and where the plaintiff claims that the claim has become invalid as a false declaration of conspiracy or has become extinguished by repayment,

[2] In order to secure a certain claim, maritime lien is specifically recognized by law, and it is difficult to exist or transfer it independently from the secured claim. Thus, the issue of whether the maritime lien is valid or not can be discussed only when the transfer of the claim secured by the maritime lien is recognized. Thus, Article 60 subparag. 1 and subparag. 2 of the Private International Act provides that the law of the country of registry shall govern the establishment of the maritime lien, whether a certain claim is secured by the maritime lien, the scope of the claims secured by the maritime lien, the order of priority of the maritime lien, etc. Therefore, it is interpreted that matters concerning voluntary subrogation of the claims secured by the maritime lien are not included in matters concerning the establishment of the maritime lien, whether the maritime lien is secured by the maritime lien, the scope of the claims secured by the maritime lien, and other matters concerning subrogation of the claims secured by the maritime lien. Thus, barring special circumstances,

[3] Where a claim secured by a maritime lien is a wage claim created by a seafarer’s labor contract, matters concerning such wage claim shall be governed by the law applicable to the seafarer’s labor contract. In regard to a seafarer’s labor contract, the country of registry can be seen as the country where the seafarer ordinarily provides labor, barring special circumstances, the law applicable to the seafarer’s wage claim under Article 28(2) of the Act on Private International Law. Thus, barring special circumstances, matters concerning subrogation of the seafarer’s wage claim are governed by the law applicable to the ship registry, as well as matters concerning maritime lien that guarantees the seafarer’

[4] In principle, when determining the contents and interpreting the meaning of foreign laws to be applied to legal relations containing foreign elements, the relevant foreign law shall be interpreted and applied in accordance with the actual meaning, content, and the relevant foreign law shall be interpreted and applied in its own country. If it is impossible to confirm the contents because data on the foreign precedents or interpretation standards are not submitted in the course of litigation, the court may determine the meaning and contents of the law in accordance with the general legal interpretation standards.

[1] Article 288 of the Civil Procedure Act, Article 151 of the Civil Execution Act / [2] Articles 35 and 60 of the Private International Act / [3] Article 28 (2) of the Private International Act / [4] Article 1 of the Private International

[1] Supreme Court Decision 97Da32178 delivered on November 14, 1997 (Gong1997Ha, 3831) / [4] Supreme Court Decision 90Meu19470 delivered on February 22, 1991 (Gong1991, 1060) Supreme Court Decision 94Da30041 delivered on February 9, 1996 (Gong196Sang, 871)

Masluflas 4 A.S. (Attorneys Lee Im-soo et al., Counsel for the defendant-appellant)

Rabbbb Doz. (Law Firm Chungcheong, Attorneys Shin Jae-sung et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2004Na10602 delivered on June 2, 2005

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

The burden of proof in a lawsuit of demurrer against distribution shall also be in accordance with the principle of allocation of burden of proof in general civil procedure. Therefore, in a case where the plaintiff claims that the defendant's claim has not been constituted, the defendant is liable to prove the fact of the cause of the claim, and in a case where the plaintiff claims that the claim has become null and void as a false declaration of agreement or disappeared by repayment,

In light of the reasoning of the judgment below and the records, it is justified that the court below recognized that Liber (hereinafter referred to as " Liber") paid part of the seafarers of the Gabre Nos. 2,214,472.18 Bads of the total wages to the seafarers of the Gabre Nos. 2,214,472.18 Gabre Co., Ltd., which was an affiliated company from February 26, 2002 to August 8 of the same year, at the request of Liberbre Services, its affiliated company, and it included the above amount of wages claims of the above seafarers from February 26, 202 to August of the same year, 200, and there is no error in the misapprehension of legal principles as to the burden of proof and the violation of the rules of evidence, as otherwise alleged in the grounds for appeal.

2. As to the third ground for appeal

Even if Rabbol service, which is responsible for the management and operation of the ship of this case, including the payment of wages to the seafarers of the ship of this case through a contract for the management of the ship of this case, has the same and the same office as its shareholders and executive officers, even if Rabol service has a separate legal personality and there is no special circumstance to deny its legal personality, the payment of Rabar's wages cannot be the same as the payment of wages to the seafarers of the ship of this case. Thus, even if Rabar does not constitute a third party who can pay wages to the seafarers of this case on the premise that the two are identical, the argument in the grounds of appeal that Rabol service does not need further review.

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

A. In order to secure a certain claim, the maritime lien is specifically recognized by the Act, and it is difficult to exist or transfer it independently from the secured claim. Thus, the issue of whether the maritime lien is effective can be discussed only when the transfer of the claim secured by the maritime lien is recognized. Thus, the matters prescribed by the law of the country of registry under Articles 60 subparag. 1 and 2 of the Private International Act are not included in the establishment of the maritime lien, whether a certain claim is secured by the maritime lien, the scope of the claims secured by the maritime lien, the order of priority of the maritime lien, etc. Therefore, barring special circumstances, matters concerning voluntary subrogation of the secured claim should be based on the applicable law of the secured claim under Article 35(2) of the Private International Act. However, in cases where a claim secured by the maritime lien is a wage claim created by a seafarer labor contract, the matters concerning the wages claim arising from the maritime lien shall be governed by the governing law of the seafarer labor contract, and in cases of a seafarer’s daily wage claim under Article 28(2) of the Private International Act, barring special circumstances.

On the other hand, in determining the contents and interpreting the meaning of foreign laws applicable to legal relations containing foreign elements, the foreign law should be interpreted and applied in accordance with the actual meaning and content of the foreign law in its country of origin. In a case where it is impossible to confirm the contents because data on the foreign precedents or interpretation standards are not submitted in the course of litigation, the court may determine the meaning and contents of the law in accordance with the general legal interpretation standards (see Supreme Court Decisions 90Da19470, Feb. 22, 1991; 94Da30041, Feb. 9, 1996).

B. According to the reasoning of the judgment below and the record, the country of registry of the ship of this case is the 3rd ton of Saint and V, and the matters on maritime lien on the ship of this case are the governing law of the 3rd ton of the 193rd ton of the 193rd to the extent that the 3rd ton of the 3rd ton of the 3rd ton of the 197rd to the effect that the 193rd ton of the 3rd ton of the 197rd to the effect that the 193rd ton of the 193rd to the 193rd ton of the 193rd to the effect of the International Convention on Maritime Lien or the 9th ton of the 193rd to the effect that the 193rd ton of the 1st ton of the 193rd to the effect of the 193rd ton of the 193rd ton of the International Convention on Maritime Lien and Mortgage.

C. Examining the above legal principles and factual relations, Article 10(1) of the International Convention, 193, which was introduced as part of the 1993 Amendment of the 3rd Ship Act, only provides that the transfer or subrogation of claims secured by maritime lien entails the transfer or subrogation of such maritime lien, and does not provide any provision as to the requirements or procedures for the transfer or subrogation of claims secured by maritime lien, it is interpreted that the requirements or procedures for transfer or subrogation of claims secured by maritime lien cannot be uniformly provided for by the different legal provisions of each country, so that matters relating to such requirements or procedures can not be determined by the law of each country. Accordingly, according to the precedents of the 1917rd Ship case, which held precedents regarding voluntary third party repayment of claims by the 197rd Ship Act, it is difficult to find out that the 19th anniversary of the amendment of the 197rd Ship Act, the precedents of the 1917rd Ship case, which held the power of the 197rd Ship Act, and that the 190rd Ship case was still in force.

If so, the court below should have examined whether Rabar is a voluntary third party as decided in 1917 ton in 1917, and if so, whether Rabar obtained the permission of the competent court prior to the payment of wages to some seafarers of the ship of this case, and should have deliberated and determined whether Rabar can legally subrogate its seafarer's wage claim.

Unlike this, the lower court determined that, on the ground that there is a lack of evidence to acknowledge the Plaintiff’s assertion that Liber may exercise the Plaintiff’s right on behalf of the seafarers only with the permission of the court prior to the payment of wages to the seafarers under the 1993 Amendment, the 193 International Convention or the 3rd Eypt amended Act does not have a provision requiring the court’s permission on the subrogation of maritime lien, the lower court determined that Liber’s right to wages can be legitimately subrogated by only the fact of payment of wages. In so determining, the lower court erred by misapprehending the legal doctrine on the crew’s wage claim and maritime lien under the 193 Amendment to the International Convention and the 193rd Eypt Act, and on the interpretation and application of foreign law, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)