(영문) 대법원 2019.6.13.선고 2018다258289 판결

The part of the judgment of the court below against the Defendant of the Selected Corporation D is reversed, and the judgment of the first instance corresponding to this part is revoked, and this part of the lawsuit is dismissed.

The remaining appeals are dismissed.

The costs of appeal between the plaintiff (Appointed party) and the defendant shall be borne by the defendant, and the total costs of appeal between the Appointed Co., Ltd. and the defendant shall be borne by the Appointed Co., Ltd.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

(1) A creditor who has an executory exemplification, a creditor who has effected a provisional seizure subsequent to the registration of a decision to commence the auction, or a creditor who has the right to preferential reimbursement pursuant to the Civil Act, the Commercial Act, the Commercial Act, or other Acts, may receive distribution only in cases where he/she demanded a distribution by the deadline for demanding a distribution (Article 88(1) and Article 148 Subparag. 2 of the Civil Execution Act). A person who is qualified to sue a lawsuit of demurrer to a distribution is limited to a creditor or a debtor who has appeared on the date of distribution on the date of distribution and has raised an objection as to the distribution schedule in substance. In order to raise an objection as to the distribution schedule as to the substantive nature, the creditor who was present on the date of distribution and raised an objection as to the distribution schedule is insufficient by the fact that he/she is a creditor against the executory obligor under the substantive law, and the creditor who was not lawfully demanded a distribution shall not have the right to raise an objection as to the distribution schedule by the date of distribution, and even if such person raised an objection against the distribution schedule by attendance on the date.

(2) According to the record, in the case of a compulsory auction (hereinafter “auction”) on the instant housing owned by F-owned, the fact that the completion period for the demand for distribution was set on July 21, 2014, and that D Co., Ltd. (hereinafter “Appointed”) asserted that F had a lien on the instant housing as a creditor of the construction cost against F, and that he/she made the demand for distribution by submitting a report on the exercise of lien on July 16, 2014. The subsequent statement of claim submitted by D to the court of execution was written on April 15, 2015, stating the principal, interest and demand procedure expenses incurred in the payment order filed by the Seoul East Eastern District Court No. 2015th 2419, the Appointed did not complete the provisional attachment or complete the registration of rights having preferential right to payment, such as mortgage, etc., prior to the registration of the decision to commence compulsory auction on the instant housing, and that D filed an objection against the Plaintiff (hereinafter “Appointed Party”).

(3) Examining these facts in accordance with the legal principles as seen earlier, it is not recognized that the right of retention claimed by the Appointor D is entitled to preferential reimbursement under the Civil Act, the Commercial Act, and other Acts, and that the Appointor D is confirmed.

Even if it is clear that a creditor falls under an executory exemplification as a creditor under an order for payment determined by the order falls under a creditor who has an executory exemplification after the completion date of the demand for distribution, even if the selected creditor D does not fall under a creditor who has lawfully demanded a distribution, and thus, he is merely an unlawful objection.

Therefore, the part concerning the Defendant of the designated party D among the lawsuit of demurrer against the distribution of this case is inappropriate as there is no standing to sue, and this should have been determined by the court ex officio regardless of the party’s assertion.

Nevertheless, as in the first instance court, the lower court neglected this, and further deliberated and determined on the merits. In so determining, the lower court erred by misapprehending the legal doctrine on standing to sue in a lawsuit of demurrer against distribution, thereby adversely affecting the conclusion of the judgment.

2. Regarding ground of appeal No. 2

The lower court determined that, at the instant auction procedure, the Defendant had already lost possession of the instant housing at the time of taking effect due to the registration of the entry of the decision on compulsory commencement of auction, and the right to preferential reimbursement under Article 3-2(2) of the former Housing Lease Protection Act (amended by Act No. 12043, Aug. 13, 2013; hereinafter the same) had expired, and the right to preferential reimbursement under Article 3-2(2) of the former Housing Lease Protection Act cannot be exercised on the grounds that the instant lease registration was completed pursuant to the order of lease under the Housing Lease Protection Act only after the date of the completion of the request for distribution. Examining the record in accordance with the relevant legal doctrine

3. As to the third ground for appeal

For reasons indicated in its reasoning, the lower court recognized the Plaintiff’s claim and determined that each of the dividend amounts against the Plaintiff and the Defendant should be corrected among the instant dividend table. In so doing, the lower court appears to have included the purport of rejecting the Defendant’s assertion disputing the validity of the Plaintiff’s claim. Examining the record, the lower court did not err by violating the duty of explanation or omitting judgment, thereby adversely affecting

4. Conclusion

Therefore, the part of the judgment of the court below against the Appointor D is reversed. Since this part of the case is sufficient for the Supreme Court to directly judge, the judgment of the court of first instance corresponding to this part is revoked, and this part of the lawsuit is dismissed, and the remainder of the appeal is dismissed. The costs of appeal arising between the Plaintiff and the Defendant are assessed against the losing party, and the total costs of appeal arising between the Appointor D and the Defendant are assessed against the Appointor D. It is so decided as per Disposition