The case holding that there exists no standing to sue to file a lawsuit of demurrer against distribution, even though the lessee of small claims, who has been duly dispatched and served by the court, but failed to demand a distribution from the date of distribution to the date of filing a demand for distribution in the auction procedure, was present on the date

The case holding that, even though a small lessee of the amount who has been duly dispatched and served by the court and failed to demand a distribution from the deadline for demanding a distribution in the auction procedure was present on the date of distribution, and has raised an objection against the distribution schedule, standing to sue to file a lawsuit of demurrer against distribution has

Articles 14 and 151 of the Civil Execution Act

Song Jin-hee

Seocho-gu Saemaeul Community Credit Cooperatives

Jeonju District Court Decision 2004Gadan26081 Decided March 23, 2005

October 13, 2005

1. Revocation of the first instance judgment.

2. The plaintiff's lawsuit of this case is dismissed.

3. The costs of lawsuit shall be borne by the plaintiff in total, in the first and second instances.

The judgment of the first instance is revoked. Of the distribution schedule prepared by the preceding district court on August 17, 2004 in the procedure of the real estate auction case of the Jeonju District Court 2003 Tata-19386, the amount of dividends against the plaintiff shall be KRW 10,00,00, and KRW 340,609,646, and the amount of dividends against the defendant shall be KRW 330,609,646, respectively.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in each entry in Gap evidence 1 through 3:

A. On July 9, 2003, the Defendant applied for an auction for exercising a security right with the Jeonjin-gu District Court on July 11, 2003, which held a judgment of commencement of auction (hereinafter referred to as the “instant auction procedure”) as the above court 2003 Mata-19386. On August 17, 2004, the above court determined the amount to be actually distributed to the lessee on the date of distribution of the above auction procedure as KRW 479,858,706, and made a distribution to the small lessee in the first order, the distribution to the Jeonjin-gu District Court in the second order, the distribution to the third order, the distribution to the Defendant, who is the person entitled to issuance, and the remaining amount to the Defendant in the distribution procedure, and the distribution schedule was prepared to exclude the Plaintiff from the distribution procedure.

B. The Plaintiff raised an objection on the distribution schedule on the date of distribution.

2. The plaintiff's assertion and judgment

The plaintiff, as a tenant of small amount under the Housing Lease Protection Act, did not receive a lawful service in the auction procedure of this case (i.e., the court sent the documents relating to the procedure for the auction by registered mail, but did not serve the plaintiff with the above documents). After being aware of the fact that the plaintiff should make a subsequent demand for distribution, the plaintiff asserted that the distribution made to the defendant, other than the plaintiff, who was subordinate, is unlawful even though he had the right to demand a distribution prior to the distribution of this case, even though he had the right to receive a preferential

The plaintiff's above assertion was examined ex officio, and a person standing to sue of a lawsuit of demurrer against distribution was present on the date of distribution and raised an objection under the substantive nature as to the distribution schedule. If the plaintiff intends to appear on the date of distribution and make an objection as to the substantive nature as to the distribution schedule, the plaintiff should have lawfully made a demand for distribution. The creditor who did not lawfully demand distribution was present on the date of distribution and did not have the right to raise an objection against the distribution schedule. Thus, even if such creditor appeared on the date of distribution and did not have the right to raise an objection against the distribution schedule, such creditor shall not be entitled to institute a lawsuit of demurrer against distribution. Further, under Article 14 (1) of the Civil Execution Act, if the plaintiff did not submit an objection against distribution to the court prior to the above date of distribution, and the plaintiff did not have the right to file an objection against the distribution under Article 14 (2) of the Civil Execution Act to the court prior to the delivery of documents to the court prior to the above date of distribution, the plaintiff's address shall be immediately reported to the court.

3. Conclusion

Therefore, the plaintiff's lawsuit of demurrer against the distribution of this case is illegal as it is instituted by a person who has no standing to sue, and thus, it is dismissed. The judgment of the court of first instance is unfair as it is concluded differently, and it is so decided as per Disposition by the assent of all participating Justices.

Judges Jeong Chang-nam (Presiding Judge)