In a case where standing to sue in a lawsuit of demurrer against distribution and goods owned by a third party are mistaken as owned by a debtor, whether the third party has standing to sue in a lawsuit of demurrer against distribution to the said third party (negative)

A person who has standing to sue in a lawsuit of demurrer against distribution shall be limited to a creditor or debtor who has appeared on the date of distribution on the date of distribution and has raised an objection under the substantive law as to the distribution schedule, and even in cases where the goods owned by a third party are mistaken as owned by the debtor as the objects of compulsory execution, such third party does not constitute an interested party in the auction procedure, and thus, there is no right to make an objection under the substantive law as to the distribution schedule, and therefore even if the third party appeared on the date of distribution and raised an objection against the distribution schedule, such objection is unreasonable, and there is no standing

Articles 151 and 154 of the Civil Execution Act

Korean Capital Capital Co., Ltd. (formerly: Heavy Loan Finance Co., Ltd.) (Law Firm Daejeon Law Office, Attorneys Kim Jung-man et al., Counsel for the plaintiff-appellant)

Korea Asset Management Corporation and one other (Attorney Kim Chang-soo, Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2001Na527 delivered on August 30, 2001

The judgment of the court of first instance is reversed, and the lawsuit of this case is dismissed. All costs of the lawsuit are assessed against the plaintiff.

Judgment ex officio is made.

A person who has standing to sue in a lawsuit of demurrer against distribution shall be limited to a creditor or debtor who has appeared on the date of distribution on the date of distribution and has raised an objection under the substantive law as to the distribution schedule, and even in cases where the goods owned by a third party are mistaken as owned by the debtor as the objects of compulsory execution, such third party does not constitute an interested party in the auction procedure, and thus, there is no right to make an objection under the substantive law as to the distribution schedule, and therefore, even if a third party appeared on the date of distribution and raised an objection against the distribution schedule, such objection is unreasonable, and there is no standing

According to the records, since the plaintiff was a mortgagee with regard to land No. 1 attached to the judgment of the court of first instance, which is the object of compulsory auction, and was present on the date of distribution, and was owned by the plaintiff, not by the debtor, the attached list No. 2 of the judgment of first instance established in the same list No. 3 buildings attached to the same list No. 1 (hereinafter referred to as "the object of this case") among the successful bid price, the plaintiff raised an objection against the distribution schedule on the substantive grounds that the plaintiff should receive preferential dividends, and filed a lawsuit of demurrer to the distribution of this case on the ground that the amount equivalent to the purchase price of the object of this case should be distributed to the plaintiff. However, the reason for the substantive reason is that there is no relation with the status of the mortgagee of the right to collateral security as to the land of this case as to the object of this case

Thus, although the lawsuit of this case should have been dismissed because it was unlawful, the court below dismissed the claim by deeming the lawsuit of this case as legitimate. Therefore, the court below cannot avoid reversal.

Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the first instance judgment accepting the Plaintiff’s claim is revoked, and the Plaintiff’s lawsuit is dismissed, and the total costs of the lawsuit are to be borne by the Plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)