Where a creditor who has obtained the decision on provisional seizure of immovables has registered the provisional seizure period by the deadline for demanding a distribution, and the decision on provisional seizure has also been served on the debtor after the completion period for demanding a distribution, whether the demand for distribution is lawful or not.

The decision of provisional seizure is not illegal because the decision of provisional seizure was not served on the debtor, and the execution of the decision of provisional seizure is possible before the judgment is served on the debtor, and the execution of provisional seizure on real estate is only recorded in the register concerning the judgment of provisional seizure. According to the provisions of Articles 88(1) and 148 of the Civil Execution Act, the creditor who made provisional seizure after the decision of provisional seizure was registered may receive a distribution by the completion date of the request for distribution. Thus, the "creditor who made provisional seizure" which can make a demand for distribution here refers to the provisional seizure creditor who completed the execution of provisional seizure on the relevant real estate by the completion date of the request for distribution, and if the creditor who received the decision of provisional seizure on real estate demands a distribution by the completion date of the request for distribution and the registration of provisional seizure was made by the completion date of the request for distribution by the completion date of the provisional seizure, even if the decision of provisional seizure was served on the debtor after the completion date of the request for distribution.

Articles 88(1), 148, 292(3), and 293(1) of the Civil Execution Act

Supreme Court Decision 77Da938 delivered on February 14, 1978 (Gong1978, 10727) Supreme Court Decision 2003Da27696 Delivered on August 22, 2003

Daegu Credit Guarantee Foundation (Law Firm Samil, Attorneys Cheong-young et al., Counsel for the defendant-appellant)

Defendant

Daegu District Court Decision 2007Kadan16882 Decided November 30, 2007

June 3, 2008

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

With respect to this Court's auction auction case of real estate (No. 36943), 10,614,465 won in the dividend table prepared on February 6, 2007 against the defendant, and 15,921,698 won in the dividend amount against the plaintiff, and 26,536,163 won in the dividend amount against the plaintiff, respectively, shall be corrected.

2. Purport of appeal

The same shall apply to the order.

1. Facts of recognition;

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings as to the testimony of Non-Party 1 as stated in the evidence Nos. 1 through 5 and the testimony of Non-Party 1.

A. Nonparty 1 entered into a credit guarantee agreement with the Plaintiff on March 31, 200 and May 10, 2002, and Nonparty 2 jointly and severally guaranteed the liability for reimbursement under the credit guarantee agreement concluded on May 10, 202. After that, Nonparty 1 received a total of KRW 150 million from the Industrial Bank of Korea on April 6, 200 and May 20, 2002 as collateral for each credit guarantee agreement. On August 13, 2004, Nonparty 1 guaranteed that the Industrial Bank of Korea would lose its interest under the credit guarantee agreement, and the Plaintiff subrogated the Industrial Bank of Korea on October 26, 2004 for the principal and interest of the loan amounting to KRW 91,322,3013.

B. On the other hand, on June 25, 2004, Nonparty 2 completed the registration of the establishment of a neighboring mortgage with the maximum debt amount of KRW 40 million with respect to the 115.7 square meters and its ground detached housing (hereinafter “instant real estate”) owned by the Defendant, Seo-gu, Daegu-gu (number omitted).

C. The plaintiff filed a lawsuit against the non-party 1 and the defendant on June 25, 2004 regarding the payment of the amount of indemnity and the mortgage contract between the non-party 2 and the defendant on the ground that the mortgage contract between the non-party 2 and the defendant on the real estate of this case constituted a fraudulent act. The plaintiff was awarded a favorable judgment on August 25, 2005. The defendant appealed to the High Court Decision 2005Na7383 on May 4, 2006, but the appeal was dismissed on May 4, 2006, and the judgment of the court of first instance became final and conclusive. The plaintiff completed the registration of the establishment of the mortgage of this case which was completed in the future of the defendant on July 12, 2006.

D. Meanwhile, on July 11, 2006, a 5-dong Saemaul Depository, which was a mortgagee of a right to collateral security regarding the instant real estate, received a voluntary decision to commence auction from the court around 2006 other 36943 on July 18, 2006 and completed the registration of the commencement of auction on July 18, 2006.

E. On September 18, 2006, the Defendant: (a) completed the provisional attachment registration on September 19, 2006, which was the date of the completion of the demand for distribution of the said voluntary auction case, with the claim amounting to KRW 30 million as KRW 24% per annum from July 25, 2004 to the date of full payment; (b) completed the provisional attachment registration on September 19, 2006, which was the date of the completion of the said voluntary auction case; and (c) made a demand for distribution with the total claim amounting to KRW 30 million as the interest calculated at the rate of 24% per annum from July 25, 2004 to the date of full payment; and (d) on the other hand, the original copy of the provisional attachment decision was reached to Nonparty 2, the debtor on November 3, 200

F. On February 6, 2007, the above auction court distributed KRW 41,687,230, out of KRW 74,320,590, to the 5-dong Saemaul Depository, a mortgagee, KRW 10,614,465, to the Defendant, a person holding a provisional attachment right, KRW 15,921,698, to the Plaintiff, a person holding a provisional attachment right, KRW 25,505,792, KRW 3,591,40, which is a person holding a provisional attachment right, to the Hyundai Capital Co., Ltd., a person holding a provisional attachment right. The Plaintiff appeared on the date of the above distribution and raised an objection against the amount of dividends to the Defendant.

2. The parties' assertion

The plaintiff, although the defendant made a demand for distribution as a provisional seizure creditor on the final date for the demand for distribution, the service of the decision on provisional seizure on the debtor on November 3, 2006, which was after the completion date for the demand for distribution ( September 19, 2006), cannot be deemed as a legitimate person entitled to the demand for distribution, and the defendant, despite the absence of a claim against the non-party 2, lost the lawsuit against the non-party 2, received a decision on provisional seizure under the presumption of the existence of a claim in collusion with the non-party 2, thereby making a demand for distribution. Thus, the defendant asserted that the amount of distribution against the defendant should be distributed to the plaintiff all, and the defendant asserted that it is the legitimate person entitled to the demand for distribution, and that his claim against the non-party

3. Determination

A. As to the allegation No. 1

The decision of provisional seizure is not unlawful on the ground that the decision of provisional seizure was not served on a debtor (see Supreme Court Decision 7Da938 delivered on February 14, 1978), and according to the provisions of Articles 292(3) and 293(1) of the Civil Execution Act, the execution of the decision of provisional seizure may be made even before the judgment is served on a debtor, and the execution of provisional seizure on real estate shall be limited to those recorded in the register concerning the judgment of provisional seizure. According to the provisions of Articles 88(1) and 148 of the Civil Execution Act, a creditor who seized provisional seizure after the decision of commencement of provisional seizure was registered may receive a distribution by the completion period of a request for distribution. Thus, the creditor who seized provisional seizure after the registration of the decision of commencement of provisional seizure is entitled to receive a distribution by the completion period of a request for distribution of real estate by the date of provisional seizure (see Supreme Court Decision 2003Da27696 delivered on August 22, 2003).

In the case of this case, the defendant made a demand for distribution by the deadline for the completion of the demand for distribution, and completed the registration of provisional seizure period on September 19, 2006, which is the date of the completion period for the demand for distribution. Thus, even if the decision of provisional seizure was served on the debtor after it, the demand for distribution is lawful. Therefore, the plaintiff

B. As to the above argument

In full view of the contents of evidence No. 3-1, No. 3-2, evidence No. 1-4, and evidence No. 1-1 to No. 4, and the purport of the whole pleadings in the testimony of Non-party No. 1, the defendant can be found to have actually lent 30 million won to Non-party No. 1 who is the children of Non-party No. 2 on June 25, 2004 under Non-party No. 2's joint and several surety, and therefore the plaintiff's above assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair, and it is so revoked, and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges Jinsung (Presiding Judge)