Plaintiff (KONS Law Firm, Attorneys Gyeong-soo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Han, Attorney Forest Management, Counsel for defendant-appellant)

September 5, 2012

Seoul Central District Court Decision 201Gahap17223 Decided February 16, 2012

1. Revocation of a judgment of the first instance;

2. Of the distribution schedule prepared by the above court on November 2, 2011, the amount of 104,221,108 won against the Plaintiff out of the distribution schedule prepared by Seoul Central District Court 201TAD 1085, KRW 230,734,113, and the amount of 126,513,05 won against the Defendant shall be corrected to KRW 0,00, respectively.

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

The judgment of the first instance shall be revoked. The judgment as referred to in paragraph (2) shall be revoked.

1. Basic facts

A. In the case of an application for a compulsory auction by official auction against real estate owned by Nonparty 1 (the Nonparty in the judgment of the Supreme Court), the said real estate subject to auction was awarded in KRW 570,418,430 on November 2, 201, and the said court prepared a distribution schedule on November 2, 2011. The Plaintiff appeared in the distribution schedule in the order of priority 104,221,108 as a creditor of the amount of credit of KRW 310,650,685 (principal KRW 250,00,000), and the Defendant was the person entitled to demand a distribution of KRW 377,095,890 (principal KRW 150,000), and the Plaintiff appeared in the order of priority 4,126,513,005 on the date of distribution and made an objection against the distribution (hereinafter “instant distribution schedule”).

B. The completion period to demand the distribution of the said auction case is July 8, 2011.

C. On June 2, 201, the Defendant filed an application for a demand for distribution with a certificate of borrowing that Nonparty 1 borrowed KRW 150,000,000 from the Defendant on April 10, 2004, a promissory note issued by Nonparty 1, the issue date of which was April 10, 2004, and a certificate of borrowing that Nonparty 1 borrowed KRW 150,00,000 from the Defendant.

D. On June 8, 2011, the Defendant filed an application with Nonparty 1 for a payment order of KRW 150,000,000 against Nonparty 1 as Seoul Central District Court Decision 201Da47326, and on the same day, submitted as reference materials verifying that the Defendant received the payment order to the above executing court.

E. Since then, the above payment order became final and conclusive on July 5, 201, the Defendant submitted an application for demand for distribution stating that “a supplementary document for the receipt of the application for demand for distribution made on June 2, 201” attached to the above auction court on August 30, 201.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 9, purport of whole pleadings

2. The plaintiff's assertion

A. According to Articles 148 and 88(1) of the Civil Execution Act, and Article 48 of the Civil Execution Rule, a creditor who has an executory exemplification may receive a distribution in the distribution procedure by a document stating the cause and amount of the claim, not later than the completion period for the demand for distribution, by a document stating the cause and amount of the claim. The above written demand for distribution shall be accompanied by an executory exemplification or a copy. The defendant did not file an application for the demand for distribution by attaching an executory exemplification or a copy by the completion period for the demand for distribution

B. There is no record of deposit and withdrawal in the account that the Defendant lent KRW 150,00,00 to Nonparty 1; at the time of lending, Nonparty 1 was aged 81; there is no establishment of security; there is no record of repayment of interest after lending; the Defendant did not take any legal measures for a long time; the Defendant’s attorney is a law firm whose representative attorney is Nonparty 1’s son; and the Defendant’s attorney is a false credit against Nonparty 1.

C. The Defendant distributed the amount of the Plaintiff’s dividends to the Plaintiff and the Defendant in proportion to the amount of KRW 151,941,135, and the amount of the Defendant’s dividends to KRW 78,792,978,00 for the amount of KRW 150,00,00 and KRW 20% per annum from June 21, 2011 to November 2, 2011, the date following the date of service of the above payment order. As such, the sum of KRW 11,095,890 for delay damages calculated from June 21, 201 to November 2, 201, the date of delivery of the above payment order, is KRW 161,09,095,890 for the amount of KRW 230,734,113, which remains after the Defendant distributed to the creditors with priority over the original Defendant, the amount of the Plaintiff’s dividends to the Defendant’s dividends to the Plaintiff and the Defendant.

D. Therefore, the instant distribution schedule prepared on the premise that the Defendant is a legitimate person entitled to demand a distribution should be corrected to delete all the amount distributed by the Defendant and distribute the said amount to the Plaintiff.

3. Determination

A. First, we examine the argument that the demand for distribution by the defendant is unlawful. Article 88(1) of the Civil Execution Act and Article 48(2) of the Regulations on Civil Execution provide that a creditor who has an executory exemplification may demand a distribution in the real estate auction procedure, and that the written demand for distribution shall be accompanied by an executory exemplification or a copy thereof. If a creditor who failed to hold an executory exemplification by the time the request for demand for distribution is filed requests a distribution, the demand for distribution is unlawful. However, if a creditor who did not hold an executory exemplification by the time the request for demand for distribution was filed, the defect in the demand for distribution shall be cured. However, even in this case, the submission of an executory exemplification or a copy thereof shall be made by the completion date of the demand for distribution (see Supreme Court Decision 2003Da27696, Aug. 22, 2003).

According to this case, the defendant failed to submit the original copy of the payment order to the court of execution by July 8, 201, which is the date of the completion period to demand a distribution of the above auction case, and submitted the original copy of the payment order to the court of execution on August 30, 201, which is the closing date to demand a distribution. According to the legal principles as seen earlier, the defendant's demand for distribution cannot be exempt from illegality.

Therefore, as to the remaining 230,734,113 won which remains after being distributed to the creditors in order of priority in the above auction procedure, the defendant cannot be paid dividends, and even if the plaintiff is to receive the total amount of dividends, the above execution court is unfair by distributing dividends to the plaintiff and the defendant in preparing the distribution schedule of this case. As such, 104,221,108 won in the distribution schedule of this case shall be corrected to 230,734,113 won in the distribution schedule of this case and 126,513,05 won in the distribution schedule of this case against the defendant, respectively.

B. As to this, the Defendant asserts to the effect that the Plaintiff’s claim against Nonparty 1 was paid KRW 50,000,000 to the Plaintiff’s principal in a notarial deed even though the principal was 150,000,000, and the portion exceeding the interest limitation provisions under the Interest Limitation Act among the Plaintiff’s claim is null and void. Nonparty 2, the principal debtor of the above obligation, repaid KRW 50,00,000 on September 206, and the Plaintiff already received KRW 104,221,108 in the above auction case, and thus, the Plaintiff’s claim against Nonparty 1 does not exist.

According to the overall purport of the pleadings in the evidence Nos. 3 and 4, the plaintiff lent KRW 300,000 to the non-party 2 on September 15, 2006, and a notarial deed and a written confirmation that the non-party 1 guaranteed it by the non-party 1, and the plaintiff held the non-party 2's investment claim, not the loan claim. In light of the above, even if all reference materials submitted by the defendant are included in reference materials submitted by the non-party 2 after the closing of the argument in this case, it is insufficient to recognize the fact that the principal amount of the loan was KRW 150,000,00, and there is no other evidence to prove the defendant's above assertion. Furthermore, there is no evidence to prove that the plaintiff's claim against the non-party 1 does not amount to KRW 230,734,113.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance, which has different conclusions, is unfair, and it is so revoked and it is so decided as per Disposition with the decision to correct the distribution schedule as above.

Judges Park Jong-nam (Presiding Judge)