Whether the demand for distribution made in advance by submitting only the source verifying the receipt of the application for the payment order before the original of the payment order is finalized and the original of the payment order is legitimate (negative), and whether the original of the payment order shall be submitted by the completion period of the demand for distribution to recover the defect (affirmative in principle)

According to the main text of Articles 58(1) and 88(1) of the Civil Execution Act, and Article 48(2) of the Regulations on Civil Execution, in order to make a demand for distribution as a creditor who has an executory exemplification of the finalized payment order, a creditor who has the executory exemplification of the final payment order shall submit a demand for distribution accompanied by the original copy of the payment order (However, in cases where there exist any grounds provided for in the proviso of Article 58(1) of the Civil Execution Act, the execution clause shall be granted). Therefore, if a demand for distribution was made by submitting only the person who has received the request for the payment order before the original copy, etc. of the payment order becomes final and conclusive and conclusive, the demand for distribution is unlawful, but any defect is cured if the original copy, etc. of the payment order, etc. is submitted thereafter.

Articles 58(1) and 88(1) of the Civil Execution Act, Article 48(2) of the Civil Execution Rule

Plaintiff (KONS Law Firm, Attorneys Gyeong-soo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Han-chul, Attorneys Ojin-jin et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Na25595 decided September 26, 2012

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

According to the main text of Articles 58(1) and 88(1) of the Civil Execution Act, and Article 48(2) of the Regulations on Civil Execution, in order to make a demand for distribution as a creditor who has an executory exemplification of the finalized payment order, a creditor who has the executory exemplification of the final payment order shall submit a demand for distribution accompanied by the original copy of the payment order (Provided, That in cases where there exist any grounds provided for in the proviso of Article 58(1) of the Civil Execution Act, an execution clause shall be granted). Therefore, if a demand for distribution was made by submitting only the person who has received the request for the payment order before the original copy, etc. of the payment order becomes final and conclusive and conclusive, the demand for distribution is unlawful, but the defect is cured if the original copy, etc. of the payment order has been submitted thereafter. However, in such

Comprehensively taking account of the adopted evidence, the lower court acknowledged the fact that the completion period to demand a distribution was determined on July 8, 201 in the auction case of the real estate owned by the Nonparty; the Defendant, on June 2, 2011, attached a promissory note causing KRW 150 million to the Non-Party’s par value issued by the Non-Party, and a loan certificate equivalent to the non-Party’s written amount, and applied for a payment order against the Non-Party on June 8, 2011 to seek payment of KRW 150 million against the Non-Party (Seoul Central District Court Decision 2011 tea47326) on the same day (Seoul Central District Court Decision 201Da47326), and thereafter, submitted the original payment order to the executing court on July 5, 2011, and the Defendant submitted the original payment order on August 30, 2011.

In addition, the lower court determined that the Defendant’s demand for distribution is unlawful, on the grounds that the Defendant did not submit to the executing court by July 8, 201, which was the date of the completion period to demand a distribution in the auction auction case as indicated in the original payment order, and submitted it on August 30, 201, which was the completion period to demand a distribution.

In light of the above legal principles, the above judgment of the court below is just, and there is no error of law by misapprehending the legal principles on the recovery of defects in the demand for distribution or demand for distribution. According to the above facts, it is clear that the defendant has an executory exemplification on August 30, 201, which is after the completion period for the demand for distribution, and therefore, it is not correct to assert that the defendant is a creditor who already has an executory exemplification on the completion period for the demand for distribution.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ko Young-han (Presiding Justice)