[1] Whether the method of attack in a lawsuit of demurrer against distribution is binding on the date of distribution (negative)

[2] Whether the applicant creditor may extend the amount claimed during the voluntary auction procedure (negative)

[3] The scope of retirement allowances eligible for preferential repayment under Article 30-2 (2) of the Labor Standards Act

[4] Whether to allow a change in the exchange of claims by the applicant creditor during the voluntary auction procedure (affirmative with qualification)

[1] In filing an objection to a distribution, there is no need to state the grounds therefor, and even if the grounds therefor were stated, the Plaintiff’s method of attack in a lawsuit of demurrer to a distribution in order to achieve the said objection is not bound by the grounds for objection on the date of distribution.

[2] In the auction procedure for exercising a security right, where the applicant creditor applied for an auction by stating only a part of the secured debt as the claim amount in the application form for the auction, barring any other special circumstance, the applicant creditor shall be determined to the extent of the original claim amount, and then the claim amount shall not be expanded by the method of submitting the claim statement by the applicant creditor.

[3] In light of the legislative process, purpose, and purport of Article 30-2(2) of the Labor Standards Act, the phrase "the last three months" in this Article appears not to be a retirement allowance. Thus, it cannot be deemed that the retirement allowance eligible for preferential repayment under that provision is limited to the retirement allowance for the last three months, and in principle, the entire amount of the retirement allowance is subject to the retirement allowance.

[4] In light of the provisions of Article 601 subparag. 3 of the Civil Procedure Act and Article 204 subparag. 2 and 4 of the Rules of Civil Procedure, which apply mutatis mutandis to an auction procedure to exercise a security right pursuant to Article 728 of the Civil Procedure Act, and the legislative intent of the provisions of subparag. 2 and subparag. 4 of the Rules of Civil Procedure, and the characteristics of the right to collateral security, in case where, in an auction procedure to exercise a right to collateral security, a claim recorded as a secured claim has been extinguished by repayment, etc. but there is another claim as a secured claim of the pertinent right to collateral security, the applicant creditor may receive a distribution of the other claim by submitting a statement of claim, etc. to seek a distribution of the other claim, by converting the claim from the original claim extinguished to the other claim, which is recorded

[1] Articles 590, 593, 595, 658, and 728 of the Civil Procedure Act / [2] Articles 601 subparag. 3, 653, and 728 of the Civil Procedure Act, Article 204 of the Rules of Civil Procedure / [3] Article 30-2(2) of the Labor Standards Act / [4] Articles 601 subparag. 3, 653, and 728 of the Civil Procedure Act, Article 204 of the Rules of Civil Procedure

[2] Supreme Court Decision 92Da50270 delivered on January 25, 1994 (Gong1994Sang, 792), Supreme Court Decision 94Da8952 delivered on February 28, 1995 (Gong1995Sang, 145) Supreme Court Decision 95Da15261 delivered on June 9, 195 (Gong1995Ha, 2383) / [3] Supreme Court Decision 94Da5474 delivered on July 25, 1995 (Gong195Ha, 2942), Supreme Court Decision 94Da57718 delivered on July 28, 1995 (Gong195Ha, 2971), Supreme Court Decision 190Da16319 delivered on February 13, 196 (Gong19630 delivered on July 16, 196)

Go Young-woo et al. (Attorney Jeong-sik, Counsel for the plaintiff-appellant)

Han-il Bank (Attorney Jin-hun et al., Counsel for the defendant-appellant)

Seoul High Court Decision 95Na14628 delivered on November 7, 1995

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

On the first ground for appeal

A lawsuit of demurrer is erroneous for the court below to accept the plaintiffs' claims beyond the scope of the grounds that the plaintiff had not made a statement in filing a lawsuit of demurrer against distribution, although the plaintiff was limited to the grounds that the plaintiff raised an objection on the date of distribution, and even if the plaintiff appeared on the date of distribution and raised an objection, as to the part that recognized the entries on the distribution schedule as having failed to raise an objection on the date of distribution, although the court below did not file a lawsuit of demurrer against distribution against the part that acknowledged the distribution schedule by failing to raise an objection on the date of distribution.

However, in filing an objection to a distribution, there is no need to state the grounds for the filing of the objection, and even if the grounds for the filing of the objection were stated in the domestic affairs, the plaintiff's method of attack in the lawsuit of demurrer to a distribution in order to accomplish the objection is not binding on the date of distribution

In addition, the record of the date of distribution (Evidence A) of the auction procedure to enforce the security right of this case stated that the plaintiffs in this case appeared on the date of distribution and stated that "the applicant creditor claimed the interest accrued after September 1, 1991 including the interest accrued after September 1, 199, and such portion is the amount after the occurrence of wage claims, so it shall not be given priority to wage claims." However, the plaintiffs' statement is reasonable to deem that the amount of the secured claim against the non-party company of the applicant non-party company (hereinafter the non-party company), which is the debtor who appeared on the date of distribution, as the representative of the non-party company of the non-party company (hereinafter the non-party company), stated that "the amount of the secured claim against the non-party company of this case, which is the applicant creditor, is 320,000,000,000 won, and it is unreasonable to claim the excessive portion." Even if there is an objection against the distribution court of this case, the distribution court of this case included the entire amount of the secured claim of this case 900.

As to the second and third points

In an auction procedure to exercise a security right, in case where an applicant creditor has filed an application for auction by stating only a part of the secured debt as a claim amount, barring any other special circumstances, the applicant creditor is determined to the extent of the amount of the claim stated in the auction procedure, and the amount of the distribution to be paid in the auction procedure cannot be expanded by the method that the applicant creditor submits a claim statement (see, e.g., Supreme Court Decisions 92Da50270, Jan. 25, 1994; 94Da8952, Feb. 28, 1995; 95Da15261, Jun. 9, 195).

The judgment of the court below to the same purport is correct, and there is no error in the misapprehension of legal principles as to the confirmation of priority claims or the extension of claims amount, or in the misapprehension of the defendant's declaration of intent in the written application for auction. There is no reason to

On the fifth ground

In light of the legislative process, purpose, and purport of Article 30-2(2) of the Labor Standards Act, the phrase "the last three months" in the above provision appears not to be a retirement allowance. Thus, it cannot be deemed that the retirement allowance eligible for preferential repayment under the above provision is limited to the retirement allowance for the part on which the employee served for the last three months, and in principle, it is established in this court that the total amount of the retirement allowance is eligible (see, e.g., Supreme Court Decisions 94Da5474, Jul. 25, 1995; 94Da57718, Jul. 28, 1995; 94Da21160, Feb. 23, 1996).

The judgment of the court below to the same purport is correct, and there is no error in the misapprehension of the provisions of Article 30-2 (2) of the Labor Standards Act, such as the theory of lawsuit. There is no reason to discuss.

On the fourth ground

The court below rejected the defendant's assertion that, even though it is not allowed to extend the amount of claims stated in the application for auction in the auction procedure, if part of the claims stated in the application for auction were repaid but other claims remain, the amount equivalent to the amount of claims stated in the application for auction should be distributed to the mortgagee at least in the application for auction, the purport of the provision allowing the applicant for auction to indicate the secured claims in the application for auction is to specify the secured claims which are the cause of the application for auction at the stage of the application for auction, and it can be said that the original claims were specified only when not only the amount of the claims but also the cause is specified, and if the mortgagee requested auction due to the non-performance of the secured claims, the secured claims shall be deemed to be converted to ordinary mortgage upon the determination of the application for auction, so long as the other claims except the above amount of claims stated in the application for auction of this case are already extinguished due to the repayment, they cannot be deemed to be included in the secured claims already established by the above application for auction, and the scope of the secured claims mentioned in

However, in light of the legislative intent of Article 601 subparag. 3 of the Civil Procedure Act, which applies mutatis mutandis to the auction procedure to exercise a security right pursuant to Article 728 of the Civil Procedure Act, and Article 204 subparag. 2 and subparag. 4 of the Rules of Civil Procedure, and the characteristics of the right to collateral security, in the auction procedure to exercise the right to collateral security, where a claim stated in the application for the auction has been extinguished by repayment, etc., but there is another claim as a secured claim of the pertinent right to collateral security, the applicant creditor may receive a distribution of the other claim by submitting a statement of claim, etc. to seek a distribution of the other claim by changing the claim from the original claim extinguished to the other claim, which is recorded in the application form for auction. However, if the amount of the secured claim after the change exceeds the amount of the claims

However, according to the records, the defendant submitted the claim amount of KRW 591,50,00 (191,50,000 on September 13, 1991 + KRW 75,00,00 on other operating capital + KRW 276,00,00 on August 17, 1991 + KRW 96,00,00 on other operating capital loans + KRW 96,00,00 on August 23, 1991; KRW 96,00,00 on the aggregate of the claim amount of KRW 96,00, KRW 96,00 on the same amount of KRW 19,00, KRW 96,00 on the other operating capital loans; KRW 96,00 on the other operating capital loans; KRW 196,00 on the other operating capital loans; KRW 186,00 on the other operating capital loans; KRW 196,00 on the same amount of KRW 186,00,0666,066,0.367.7.

In light of the above circumstances, the defendant, the applicant creditor, can receive dividends from the secured claim of this case which takes precedence over the claims of the designated parties, including the plaintiffs, in the distribution procedure of this case, within the scope of the amount of the original claim, but the court below did not err by misapprehending the legal principles on the claim in the auction for the execution of the right to collateral security, and it is obvious that this affected the conclusion of the judgment, and therefore, it is reasonable to point this out.

Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Im-soo (Presiding Justice)