[1] In a case where a creditor who has the right to preferential reimbursement under the substantive law has failed to make a lawful demand for distribution by the completion period for the demand for distribution, whether to receive a distribution (negative), and whether to add or expand a claim which has not been demanded after the completion period for the demand for distribution has been required only for a part of the claim (negative)

[2] Specific extent of "the ground for the claim" to be stated in the demand for distribution

[1] Articles 88(1) and 148 subparag. 2 of the Civil Execution Act / [2] Article 88(1) of the Civil Execution Act, Article 48 of the Civil Execution Rule

[1] [2] Supreme Court Decision 2008Da65242 Decided December 24, 2008 (Gong2009Sang, 102) / [1] Supreme Court Decision 2011Da44160 Decided May 10, 2012 (Gong2012Sang, 981)

Plaintiff (Appointed Party) (Attorney O Young-young et al., Counsel for defendant-appellant)

Korea Credit Guarantee Fund (Law Firm Self-Training, Attorneys Choi Financial Resources et al., Counsel for the plaintiff-appellant)

Daejeon District Court Decision 2013Na104620 Decided December 23, 2014

The judgment below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. A creditor who has an executory exemplification, a creditor who has effected a provisional seizure subsequent to the registration of a decision on commencing the commencement of a distribution, or a creditor who has the right to demand a preferential reimbursement under the Civil Act, the Commercial Act and other Acts, may receive a distribution only in cases where he/she has made a demand for a distribution by the completion period for the demand for distribution. In cases where a legitimate demand for distribution has not been made, even if he/she is a creditor who has the right to demand a preferential reimbursement under the substantive Acts, he/she shall not receive a distribution from such proceeds of sale. In cases where a creditor who has made a demand for a distribution only by the completion period for the demand for distribution, he/she shall not add or expand a claim that has not been demand for a distribution after the completion period

The demand for distribution shall be made in writing, specifying the cause and amount of the claim, and the written demand for distribution shall be accompanied by an executory exemplification or a copy thereof, and other documents attesting the qualification for a demand for distribution (Article 48 of the Regulations on Civil Execution). In this case, if the cause of the claim is sufficiently stated to the extent that the creditor requesting a distribution can specify the cause of the claim held by the creditor demanding a distribution against the debtor, but in the case of a demand for distribution not based on an executory exemplification, detailed indication of the cause of the claim is required to the extent that it is possible to distinguish the claim by the debtor (see, e.g., Supreme Court Decision 2008Da65242, Dec.

2. According to the reasoning of the lower judgment and the record, the Plaintiff, as a party to the selection of workers by Arabic Fax Co., Ltd., the owner of the real estate for both the debtor and the auction purpose, made the first demand for distribution on September 28, 2012, accompanied by the source for verifying the delayed payment of the money and valuables, average wages, and a written calculation of retirement allowances, etc. on September 28, 2012, which is the date of the completion date of the demand for distribution of the instant auction procedure. The written demand for distribution states that “the creditors demanding distribution are concurrently the employees of the debtor and the owner, who have the right to preferential reimbursement of the wages and retirement allowances prescribed in the Labor Standards Act, shall apply for the demand for distribution.” The “retirement allowance” in the “production of the claim for distribution” column 200,297,364 won, and the “final amount of retirement allowance” in the “final amount of 30,651,43 won, and the “final amount of retirement allowance” in the “final amount of 36 months” order.

Examining these facts in light of the legal principles as seen earlier, the wage for the last three months and the retirement allowance for the last three years which the plaintiff lawfully demanded as a claim entitled to the top priority payment shall be the total of 15,651,43 won as stated in the column of “final three-month wage and the retirement allowance for the last three-year period (the highest repayment amount)” in the first demand for distribution submitted before the completion date of the demand for distribution. This cannot be viewed as a preferential payment for the first three-month wage, which was omitted from the last three-month wage at the time the plaintiff demanded the first demand for distribution, as a preferential payment for the amount calculated on February 2, 2012, which was omitted from the last three-month wage at the time of the first demand for distribution, or on which the documents attached to the first demand for distribution contain the unpaid wage for the last three-month period and the retirement allowance details included in the final demand for distribution for the above increased amount. Therefore, even if the plaintiff submitted the second demand for distribution after the completion date of the second demand for distribution, it shall not be deemed a legitimate payment.

In addition, Supreme Court Decision 2002Da52312 Decided July 22, 2004 cited by the court below is not appropriate to be invoked in the instant case, unlike the instant case.

Nevertheless, solely on the grounds stated in its reasoning, the lower court determined that the Plaintiff should have received prior dividends to the Defendant, a mortgagee, on the increased portion, by deeming that there was a legitimate demand for distribution of the increased portion. In so doing, the lower court erred by misapprehending the legal doctrine on the completion period to demand a distribution and the addition and expansion of

3. 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.

[Attachment] List of Appointeds: Omitted

Justices Ko Young-han (Presiding Justice)