The meaning of "a creditor who seized provisional seizure" that can demand a distribution under Article 605 (1) of the former Civil Procedure Act

[1] Article 88 (1) of the Civil Execution Act

Korea Life Insurance Co., Ltd. (Attorney Kim Chang-hoon, Counsel for defendant)

Kim Byung-in

Suwon District Court Decision 2002Na18432 delivered on April 30, 2003

The judgment of the court of first instance is reversed, and the lawsuit of this case is dismissed. All costs of the lawsuit are assessed against the plaintiff.

Judgment ex officio is made.

Article 605 (1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) provides that a creditor who has effected a provisional seizure after the registration of a request for auction may demand a distribution by the date of the successful bid. In this context, the "creditor who may demand a distribution" refers not to the creditor who has received the decision of provisional seizure but to the creditor who has made a provisional seizure after the execution of provisional seizure on the relevant auction real estate. Thus, if a creditor has submitted only the decision of provisional seizure before the execution of provisional seizure and made a demand for a distribution in advance, he/she shall be deemed unlawful. However, even in this case, the execution of provisional seizure shall be completed by the completion of the provisional seizure until the completion of the request for distribution (the plaintiff's ground of appeal that the provisional seizure creditor may demand a distribution only by submitting the provisional seizure decision, which is without merit in this regard, and the case cited by the plaintiff in this regard shall not be justified in this case).

In addition, a person who is standing to sue a lawsuit of demurrer against distribution has attended on the date of distribution and raised an objection on the substantive basis of the distribution schedule, and in order for a creditor to be present on the date of distribution as a creditor and to file an objection on the substantive basis of the distribution schedule, the creditor who is the executory debtor under the substantive law is insufficient to have lawfully made a demand for distribution by the deadline for requesting distribution. The creditor who has not lawfully made a demand for distribution does not have the right to make an objection on the date of distribution and have the right to make an objection on the distribution schedule, and even if such person appeared on the date of distribution and raised an objection on the date of distribution, such objection is unreasonable, and there is no standing to sue to file a lawsuit of demurrer against distribution (see Supreme Court Decision 201Da63155, Sept. 4, 2002).

According to the facts and records duly admitted by the court below, the plaintiff is a mortgagee against the real estate in the judgment of the court below, which is the object of a compulsory auction, as the amount of a claim for loans exceeding the maximum debt amount of the right to collateral security. The plaintiff was determined to make a provisional seizure prior to the completion date of a demand for distribution under the above real estate auction procedure and did not complete the execution of provisional seizure against the above real estate by the completion date of a demand for distribution. The distribution schedule prepared by the court of execution, although the plaintiff was fully apportioned the maximum debt amount of the above right to collateral security against the plaintiff, but did not fully distribute the above amount of the claim for provisional seizure even though the defendant's claim was in the same order as the defendant's claim for provisional seizure, and the plaintiff filed a lawsuit of demurrer against the distribution of this case on the actual ground that the plaintiff should receive a distribution in proportion to the amount of the claim for provisional seizure. The plaintiff was paid the full maximum debt amount of the right to collateral security, which is the substantial reason for the plaintiff's assertion is not related to the status of the mortgagee as to the above real estate in its judgment, and is unlawful in light of the above legal principles.

Thus, although the lawsuit of this case should have been dismissed because it was unlawful, the court below dismissed the claim by deeming the lawsuit of this case as legitimate. Therefore, the court below cannot avoid reversal.

Therefore, the judgment of the court below shall be reversed, and this court shall directly decide pursuant to Article 437 subparagraph 1 of the Civil Procedure Act. The first instance court also accepted the plaintiff's claim on the premise that the lawsuit of this case is legitimate. Therefore, the judgment of the court of first instance shall be revoked and this part of the lawsuit shall be dismissed. It is so decided as per

Justices Lee Ji-dam (Presiding Justice)