In case where the execution court decided the completion period to demand a distribution with respect to the real estate owned by the principal debtor, and the guarantor has failed to observe the above completion period in the course of exercising the right to demand a reimbursement with respect to the principal debtor after subrogated for the obligation, whether the execution court may extend the completion period to demand a distribution (affirmative with qualification)

Article 84(6) of the Civil Execution Act

Supreme Court Order 2005Ma477 Decided July 12, 2005 Supreme Court Order 2008Da72 Decided June 12, 2008

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

Korea Credit Guarantee Fund (Liwon Law, Attorneys Shin Shin-man, Counsel for the plaintiff-appellant)

Cheongju District Court Decision 2012Na4559 decided April 16, 2013

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

Article 84(6) of the Civil Execution Act provides that a court may extend the completion period to demand a distribution where it deems it particularly necessary. The execution court has decided the completion period to demand a distribution in the procedure for a compulsory auction against real estate owned by the principal debtor, and where the execution court failed to observe the above completion period in the course of exercising the right to demand a reimbursement against the principal debtor after subrogated the debtor to the debtor, the execution court may extend the completion period to demand a distribution only where it deems it particularly necessary in consideration of the progress of the auction procedure, whether there exists any cause attributable to the guarantor for failing to observe the above completion period, the size of the period for failing to observe the above completion period, the impact on interested parties such as the creditor, etc. or on the auction procedure, and the decision of the execution court citing or rejecting the application for the extension of the completion period to demand a distribution for the said reason is by discretion under the above provisions (see, e.g., Supreme Court Order 2005Ma477, Jul. 12, 2005; Supreme Court Order 208Da7208).

According to the reasoning of the lower judgment and the records of the instant case, at the instant auction procedure commenced on July 6, 201 with respect to the instant real estate owned by the Nonparty, the executing court decided on October 10, 201 as to the period of demand for distribution; the Nonparty applied for an order to commence individual rehabilitation procedures on July 18, 201; the Nonparty was subject to an order to prohibit compulsory execution, etc. based on individual rehabilitation claims on July 21, 201; and the Nonparty was ordered to suspend the instant auction procedure until the decision on the above application was made on August 2, 2011; however, the Nonparty’s application to commence individual rehabilitation procedures was dismissed on October 17, 201; the Defendant, the Nonparty’s credit guarantee broker, was subrogated to the Bank of Korea on October 26, 201, and was determined to postpone the period of claiming for distribution of the instant real estate upon obtaining a decision on October 27, 2011 as to the claim for distribution of the instant real estate by subrogation.

In light of the above facts, as the suspension order for the auction procedure of this case was issued in the Health Unit and the individual rehabilitation procedure, the period for the first demand for distribution was suspended after the non-party's application for the commencement of individual rehabilitation procedure was dismissed, and the defendant applied for the extension of the period for the demand for distribution to the court of execution by subrogation of the non-party's debt within a considerable period after the non-party's application for the commencement of individual rehabilitation procedure was rejected, and the extension period of the period for the demand for distribution is less than 2 months and it is difficult to deem that the period for the demand for distribution is unstable. In light of the above, the postponement of the period for the demand for distribution by the court of execution is legitimate as

The court below's determination that the defendant's demand for distribution, which was made within the period of the postponed demand for distribution, is lawful and valid on the premise that the decision to extend the period of the demand for distribution by the court of execution is legitimate and valid, is not somewhat inappropriate at the time of the explanation of its reasoning.

Therefore, the appeal is 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.

Justices Kim Yong-deok (Presiding Justice)