Whether a creditor of the collateral security of a foreign ship may receive a distribution only by the time when he/she makes a demand for distribution by the successful bid date pursuant to Article 605(1) of the Civil Procedure Act (affirmative)

Article 681(1)2 of the Civil Procedure Act, which provides that a foreign vessel shall submit an abstract of its registry at the time of filing a request for auction (see Article 688 of the Civil Procedure Act), does not apply to the execution of a foreign vessel, from the beginning of the beginning. As such, even if a right to collateral security exists with respect to a foreign vessel, the court of execution does not know at all the existence and amount of the claim unless there is a demand by the mortgagee of the right to collateral security, and the purpose of limiting the completion period for claiming distribution until the successful bid date is to prevent any excessive auction by determining the amount of the claim to be collected from the proceeds from the proceeds of sale in advance, and to avoid procedural delay and confusion arising from the increase of the amount of the claim in the distribution procedure. Thus, a creditor of collateral security with a foreign vessel can only receive a distribution by the date of successful bid under Article 605(1) of the same Act.

[1] Articles 580, 605(1), 681(1)2, and 688 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

X-cellco Ltd. (Law Firm Cheonghae, Attorneys Kim Yong- rules et al., Counsel for the plaintiff-appellant)

Han Young Enterprise Co., Ltd. and 11 others (Law Firm Samyang, Attorneys Song Tae-won et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2001Na14146 delivered on April 12, 2002

1. All of the plaintiff's claims are dismissed.

2. Litigation costs shall be borne by the plaintiff.

창원지방법원 통영지원 99타경19614 호 선박임의경매사건에 관하여 위 법원이 2000. 6. 14. 작성한 배당표 중 피고 한영기업 주식회사에 대한 배당액 38,479,883원을 2,516,418원으로, 피고 진산선무 주식회사에 대한 배당액 9,839,366원을 643,452원으로, 피고 주식회사 중앙해사에 대한 배당액 4,777,444원을 312,424원으로, 피고 주식회사 보스쉬핑에 대한 배당액 7,521,441원을 491,870원으로, 피고 유니푸로스해운 주식회사에 대한 배당액 19,610,280원을 1,282,428원으로, 피고 주식회사 매일마린에 대한 배당액 56,248,201원을 3,678,389원으로, 피고 그로발스타해운 주식회사에 대한 배당액 24,105,667원을 1,576,407원으로, 피고 쓰리화이브해운 주식회사에 대한 배당액 16,212,658원을 1,060,238원으로, 피고 이정일에 대한 배당액 50,564,524원을 3,306,702원으로, 피고 백규현에 대한 배당액 26,601,772원을 1,739,641원으로, 피고 바델스 앤 루더스 지엠비에이치에 대한 배당액 172,085,787원을 11,253,667원으로, 피고 헴펠 마린 페인트 에이에스에 대한 배당액 60,408,951원을 3,950,485원으로 하고, 원고에게 454,643,853원을 배당하는 것으로 경정한다.

1. Basic facts

The following facts do not conflict between the parties, or can be acknowledged by comprehensively taking into account the whole purport of the pleadings in each of the statements in Gap evidence 1-1-8, Eul evidence 2-1, Eul evidence 3-2, Eul evidence 6-1, Eul evidence 7-2, Eul evidence 8, Eul evidence 9, 11, and 13.

A. On September 1, 1999, the court of execution filed an application for the auction of the vessel of this case with respect to the instant vessel as a seafarer with respect to the compactine skmea (hereinafter referred to as the “instant vessel”) owned by the Russian flag vessel, which is a Russian State, under the laws and regulations of the Russian State, by 21 other creditors, who are creditors with maritime lien under the laws and regulations of the Russian State, as a seafarer of the instant vessel of this case. The court of execution decided on September 1, 199 to commence the auction procedure of the instant vessel of this case.

B. On June 9, 2000, after the lapse of March 31, 2000, the successful bid date, the Plaintiff filed a report on the right and filed an application for distribution with the court of execution for a claim of US dollars 408,301.62.

C. When distributing KRW 716,205,925, which was deducted from the cost of execution from the proceeds of sale on June 14, 2000, the court of execution filed an objection against the dividend amount distributed by the plaintiff to the defendants, who are the right to demand distribution, in the order of first priority, to distribute the distribution of KRW 195,064,42 to 21 persons, the applicant creditor, the applicant creditor, and 11,524,887, and to 11,524,87,407, and 8,090,407, to the defendant corporation every day, and 15,070,595, to the defendant corporation, the right to demand distribution, in the order of third priority, to distribute the dividend amount distributed by the plaintiff to the defendants, as described in the purport of the claim.

2. The party's assertion and judgment

(a) A captain;

On June 4, 1999, the Plaintiff entered into a mortgage agreement with the above Boston and the pertinent vessel with the maximum debt amount of 600,000 U.S. dollars, and registered it with the ship mortgage registration office located in Russia on the 10th of the same month. The preserved claim is up to US$408,301.62 at the time of the demand for distribution as above, and even if the Plaintiff is the mortgagee of the instant vessel, even if the Plaintiff did not demand a distribution under Article 605(1) of the Civil Procedure Act, it is naturally possible for the court of execution to pay dividends in the order of priority to the Plaintiff, as a general creditor, notwithstanding the fact that the court of execution could have received a demand for distribution under Article 605(1) of the Civil Procedure Act. The Defendants asserted that the above secured claim of the said right should not be established unless the Plaintiff is a legitimate mortgagee, i.e., a foreign vessel, even if not, the court of execution did not have the right to demand a distribution after the successful tender.

(b) Markets:

First, as to whether the plaintiff's demand for distribution is legitimate, the dispute between the plaintiff and the defendant can be finally resolved regardless of whether the plaintiff is a legitimate mortgagee or not, so the right to demand a distribution may be judged first, and Article 681 (1) 2 of the Civil Procedure Act, which applies mutatis mutandis by Article 729 of the same Act, provides that a request for auction concerning a ship shall be accompanied by an abstract of the register including each registered matter, and Article 605 (1) of the same Act provides that a creditor who has the right to demand a preferential repayment under the Civil Act, the Commercial Act, and the Commercial Act, and the Commercial Act may demand a distribution by the successful bid date, and even if a request for a preferential repayment is not made because the court of execution recognizes the right to demand a distribution separately, it shall be deemed that a creditor who has a claim that could not know the existence or amount of the claim unless a demand for a distribution is made because it does not have the right to demand a preferential payment, and even if a request for a distribution has been filed separately by the court of execution prior to the registration of a preferential payment.

With respect to the instant case, there is no registry in the Republic of Korea from the beginning in the case of a foreign vessel, such as the instant vessel, and there is no provision on the procedure to enter the foreign vessel in the registry (see Article 688 of the same Act) and it is not applicable to Article 681 (1) 2 of the same Act which provides that a copy of the registry shall be submitted at the time of a request for auction (see Article 688 of the same Act). Thus, even if a foreign vessel has a right to collateral security, the court of execution does not know at all the existence and amount of the relevant claim unless there is a demand by a neighboring creditor. The purport of limiting the completion period for demand for distribution is to prevent excessive auction by determining in advance the amount of the claim to be collected from the proceeds from the proceeds of sale and to avoid any delay and confusion arising from the increase of the amount of the claim in the distribution procedure (see Supreme Court Decision 92Da52733, Mar. 26, 1993). Therefore, it is reasonable for the Plaintiff to receive distribution from the successful bidder of the instant claim for distribution.

As to this, the plaintiff again failed to make a distribution by the successful bid date because the copy of the registry concerning the ship of this case was not submitted at the time of filing a request for auction with respect to the ship of this case, the plaintiff failed to obtain any notification on the progress of the auction procedure, and the plaintiff failed to make a demand for distribution by the successful bid date. However, the plaintiff's assertion that the demand for distribution with the successful bid date cannot be held liable to the plaintiff as a legitimate demand for distribution, regardless of the fault of the person having the right to demand distribution. Thus, the plaintiff's above assertion is without merit (the plaintiff did not make a legitimate demand for distribution and the plaintiff is not qualified to file a lawsuit of demurrer against distribution of this case, but is illegal as the plaintiff did not raise the objection of this case on the date of distribution, and therefore the plaintiff is entitled to file a lawsuit of demurrer against distribution of this case

Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.

Judges Yellow Gung-Gyeong (Presiding Judge)