[1] In a case where a court of execution shall temporarily keep the dividends in the proceeding of a growing party following a lawsuit of demurrer against distribution, the principal custodian (=the cash accounting official other than the revenue and expenditure of the enforcement court) and in the case

[2] The case holding that, in case where Gap received a dividend in a specific auction procedure and raised an objection to the dividend amount of other auction creditors, thereby passing the cultivation procedure in a lawsuit of demurrer against distribution, the subject claim was effective and specified as stated in the Gap's written application for attachment and assignment order for the dividend claim Eul's claim

[1] The procedure of cultivation due to a lawsuit of demurrer against distribution is only under the jurisdiction of the execution court. If the execution court temporarily keeps the dividends during the proceeding for cultivation, the principal custodian is the cash accounting official other than the revenue and expenditure other than the revenue and expenditure, who is the person in charge of the court custody of the execution court. In such a case, the deposit official shall be deemed to be only the custodian of a temporary

[2] The case holding that, in case where Gap received a dividend in a specific auction procedure and raised an objection to the dividend amount of other auction creditors, thereby passing the cultivation procedure in a lawsuit of demurrer against distribution, the subject claim was effective and specified as stated in the Gap's written application for attachment and assignment order for the dividend claim Eul's claim

[1] Article 154 of the Civil Execution Act / [2] Articles 154 and 229 (1) of the Civil Execution Act

Plaintiff

Defendant (Law Firm Taedong, Attorneys Lee Dong-soo et al., Counsel for defendant-appellant)

Seoul Eastern District Court Decision 2004Da46350 decided May 2, 2006

April 23, 2007

1. The part of the judgment of the court of first instance against the defendant shall be revoked.

2. The plaintiff's claim as to the above cancellation part is dismissed.

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

1. Purport of claim

The defendant shall pay to the plaintiff 50 million won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by taking into account the whole purport of the arguments as a result of the inquiry into the facts of Gap evidence 1 through Gap evidence 4, Gap evidence 5-1 through 4, non-party 7 of the first instance court witness, non-party 7 of the first instance court witness, and the Seoul Central District Court depository officials of the first instance court.

A. Preparation of a distribution schedule and filing of a lawsuit of demurrer against a non-party 1 corporation, etc.

(1) Upon the application of Nonparty 1 Co., Ltd. (hereinafter “Nonindicted Company 1”), on the date of distribution of the real estate auction procedure (number omitted) at 2001, the Seoul Central District Court 2001, which was proceeding with respect to the land and the building on its ground, the above court prepared a distribution schedule that: (a) the amount to be actually distributed on August 21, 2002 shall be KRW 285,517,083; (b) Nonparty 2 among them, KRW 80,000,000 to Nonparty 3; (c) KRW 30,000,000 to Nonparty 4; and (d) Nonparty 5 to Nonparty 6; and (e) KRW 15,00,000,000 to Nonparty 6; and (e) KRW 32,517,083 to Nonparty 1.

(2) On August 27, 2002, the Seoul Central District Court 2002Gahap202 (number omitted) filed a lawsuit of demurrer against the distribution against Nonparty 2, 3, 4, 5, and 6 among the above distribution schedule.

(3) Meanwhile, according to the filing of a lawsuit of demurrer against the distribution by Nonparty 1, the deposited person was Nonparty 4 with Nonparty 30,019,223 won as Seoul Central District Court No. 2002 gold (number omitted), the deposited person was Nonparty 3, and the deposited person was 28,017,939 won in the same court No. 2002 gold (number omitted), the deposited person was Nonparty 5, and the deposited person was 15,009,616 won in the same court No. 2002 gold (number omitted), and the deposited person was Nonparty 2, and the deposited 80,051,249 won in the same court No. 202 gold (number omitted) with the deposited person as Nonparty 6, and the deposited person was not clearly recorded with Nonparty 1, but the deposited person was not clearly recorded with Nonparty 1 in the court No. 201, and each of the above reasons for objection against the distribution on the same date.

(b) Results of lawsuits of demurrer against distribution;

On August 22, 2003, the Seoul Central District Court sentenced the amount of dividends of Nonparty 1 to KRW 32,517,083 to KRW 173,517,083, the amount of dividends of Nonparty 5 to KRW 15,00,000 shall be reduced to KRW 12,00,000,000, and the amount of dividends of Nonparty 2 to Nonparty 3 to KRW 28,00,000,000, and the amount of dividends of Nonparty 4 to Nonparty 4 to KRW 30,00,00,000, respectively, and the Seoul High Court appealed the above decision and appealed by Nonparty 1 and Nonparty 5,2,3, and 4 to KRW 203 or (Serial number omitted), but the above decision became final and conclusive around June 22, 2004.

C. Issuance, etc. of the instant claim attachment and assignment order

(1) On July 5, 2004, the Plaintiff revealed the distribution schedule of the above auction case and the copy of the judgment of lawsuit of demurrer against distribution to Nonparty 7, a certified judicial scrivener, and sought the Plaintiff’s method of securing claims against Nonparty 1. Nonparty 7 said that, with executory notarial deeds, Nonparty 7 may obtain an order of seizure and assignment of claims against the above dividends.

(2) On July 15, 2004, the Plaintiff: (a) a notary public, with the face value of KRW 50,000,000, issued a non-party 1’s debtor; (b) a notary public, with an executory promissory note No. 2004 (number omitted); (c) delegated the Defendant, through Nonparty 7, through Nonparty 7, to prepare and submit an application for the attachment and assignment order of a claim against each of the above dividends; and (d) the Defendant, on the same day, prepared an application for the attachment and assignment order of a claim and submitted it to the Seoul Central District Court.

Creditor: Plaintiff

Obligor: Nonparty 1 Company

Third Obligor: Republic of Korea (Jurisdiction: Cash Accounting Officer other than the Seoul Central District Court)

Claim Amount: 50,000,000

Of the successful bid price for real estate auction cases in Seoul Central District Court No. 2001 (number omitted), 99 (number omitted), and 2000 (number omitted) where Nonparty 1 Company has against the Republic of Korea, the amount of money from the dividends that Nonparty 1 is to receive from the Republic of Korea to the claim claim amount among the dividends to be received by Nonparty 1 Company by the distribution procedure.

(3) On July 19, 2004, the attachment and assignment order was issued by the Seoul Central District Court 2004 another (number omitted) with the same content as the above written application.

D. Receipt of dividends from Nonparty 1 Company and Nonparty 8

(1) As to the above KRW 32,517,083 distributed to Nonparty 1 Company, Nonparty 1 Company received KRW 32,517,083 around September 11, 2002 due to the lack of separate grounds for restriction on payment.

(2) On the other hand, on August 5, 2004, the non-party 1 transferred part of the right to claim payment of deposit money deposited with the deposited person to the non-party 4, 3, 5, and 2 as described in the above paragraph (a) to the non-party 8, and notified the defendant of the fact of transferring the claim. After that, the non-party 1 received all of the above deposit money on August 20, 204 and the non-party 8 received on August 27, 2004.

2. The plaintiff's assertion and judgment as to the plaintiff

A. The plaintiff's assertion

As the cause of the instant claim, the Plaintiff asserts that the Defendant, upon the Plaintiff’s delegation, prepared an application for the instant claim attachment and assignment order, and specified the garnishee as the public official in charge of deposit outside the Seoul Central District Court (the competent jurisdiction: the public official in charge of revenue and expenditure of the cash other than the Seoul Central District Court) in the Republic of Korea (the revenue and expenditure of the Seoul Central District Court) despite having to specify the garnishee as the Republic of Korea (the public official in charge of revenue and expenditure of the Seoul Central District Court). Since Nonparty 1 failed to specify the claim for dividend payment to be received by the executing court through a favorable judgment in the lawsuit of objection against Nonparty 2, etc.

(b) Markets:

(1) As to the procedure for paying dividends at the auction procedure

If a creditor raises an objection against a claim of another creditor on the date of distribution, the execution court shall deposit the partial distribution amount. In case where a lawsuit of demurrer against distribution becomes final and conclusive, the execution court shall issue a certificate of payment verifying that the creditor is the holder of the right to receive the dividends in accordance with the revised distribution schedule after correcting the distribution schedule in accordance with the result of the lawsuit of demurrer against distribution, and send a written entrustment of payment to the deposit official, which entrusts the creditor with the payment of the deposit money, to the deposit officer, so that the deposited public official may pay the dividends to the creditor.In case where the right to claim the deposit payment of the person designated as the deposit holder is denied as a result of the lawsuit of demurrer against distribution, the execution court shall receive the deposit again and keep the deposit money as the deposit money in the custody of the court, and take the method of direct payment to the legitimate holder of the right determined by the lawsuit of objection against distribution. However, in case of a temporary deposit of the public official in the court of execution and the method of indirect payment using the certificate of payment and the payment entrusted document, which is the cash custodian under its jurisdiction.

(2) In the instant case:

On the other hand, in preparing the application form for the attachment and assignment order of this case according to the Plaintiff’s delegation, it is justifiable that the Defendant entered the third debtor into the Republic of Korea and entered the division or public official in charge of the affairs under its jurisdiction as the cash accounting official other than the Seoul Central District Court’s Seoul Central District Court’s 2001 (number omitted) around 99 (number omitted) and 2000 (number omitted) among the successful bid price for the real estate auction case in which the non-party 1 company has against the Republic of Korea, stated “the amount of money from the dividends that the non-party 1 would have received from the Republic of Korea to the claim claim out of the dividends that the non-party 1 would have received by the distribution procedure” in the lawsuit of demurrer against the non-party 2, etc., and therefore, it is deemed that the seizure and assignment order was valid.

3. Conclusion

Therefore, in preparing an application for the attachment and assignment order of this case, the plaintiff's claim of this case based on the premise that the defendant was negligent shall be dismissed as it is without merit. Since the judgment of the first instance that partially different conclusions are unfair, the part against the defendant in the judgment of the first instance shall be revoked by accepting the defendant's appeal and the part against the defendant in the judgment of the first instance shall

Judges Yellow Affairs (Presiding Judge)