Whether filing a lawsuit of demurrer against a distribution is permissible in the auction procedure based on the principle of acceptance (negative)

In an auction procedure based on the extinguished principle, the priority creditor or general creditor's demand for distribution and distribution are recognized, so it is allowed to file a lawsuit of demurrer against distribution against the distribution schedule prepared in the said procedure, but the lawsuit of demurrer against distribution shall not be allowed, unless the demand for distribution and distribution are recognized in the auction procedure based on the acquisition

Articles 88, 91, 111, 145, 154, 268, and 274(1) of the Civil Execution Act; Article 322(1) of the Civil Act

Plaintiff (Attorney Lee Jong-soo et al., Counsel for the plaintiff-appellant)

Seog Electricity Co., Ltd. (Law Firm Sejong, Attorneys Lee Yong-sung et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2010Na1956 decided September 8, 2011

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below acknowledged that the defendant asserted a lien on the claim for the construction price of this case against military ground industrial development as the secured claim, and applied for an auction under the lien on each real estate of this case owned by the plaintiff (appointed party) and the designated party (hereinafter referred to as "the plaintiff for convenience"). The non-party purchased each real estate of this case at the above auction procedure and paid the price, and completed the registration of ownership transfer, and the above court prepared the delivery slip of this case with the purport that the non-party paid the purchase price of this case at the above auction procedure and completed the registration of ownership transfer. The above court made the delivery slip of this case with the purport that the remaining amount after deducting the execution cost from the total sale price of each real estate of this case and the interest on the sale price of this case were fully delivered to the defendant on the date of distribution, but raised an objection against the objection against the distribution of this case, the court below rejected the extinctive prescription period of this case after the expiration of three years. The plaintiffs' claim for the construction price of this case was suspended, or the plaintiffs cannot claim for the expiration of extinctive prescription, or the defendant's objection.

However, the above determination by the court below is difficult to accept for the following reasons.

Articles 91(2) and (3), and 268 of the Civil Execution Act provide in principle the principle of extinguishment in the compulsory auction and the auction for exercising a security right, as well as the principle of extinguishment in most of the auction under Articles 91(2) and (3), and 268 of the Civil Execution Act, and on this premise, detailed provisions concerning the decision on the completion period to demand a distribution, the peremptory notice to report a claim, the demand for distribution, the distribution and the distribution procedure, etc., and Article 322(1) of the Civil Act provides that "the lien holder may sell the retained object by auction to obtain satisfaction of the claim." On the other hand, even at an auction under the lien, under the premise of the existence of the creditor and the debtor, an auction is proposed for the realization and satisfaction of the claim. On the other hand, if the acquisition principle is taken, there is no provision on the procedure to investigate and determine the existence and contents of the above secured object real estate and there is no provision on the scope of the acquisition burden, and it is reasonable to determine the above legal status of the purchaser and the above auction creditor's.

In addition, in the auction procedure following the extinction principle, the priority creditor or general creditor's demand for distribution and distribution are recognized, so it is allowed to file a lawsuit of demurrer against distribution against the distribution schedule prepared in the said procedure. However, in the auction procedure based on the takeover principle, the demand for distribution and distribution are not recognized, and a lawsuit of demurrer against distribution

However, according to the records, the date auction report of December 7, 2009 (No. 6-3) on the auction of this case stated that "the execution officer considered the specifications of the goods to be sold, the current status survey report, and the assessment statement copy while conducting the bidding procedure, and then notified the conditions of special sale." In the search of the auction case (Evidence A 19) on the above auction, the fact that "the cost of the goods in the description of the goods is in the column of the article, such as collateral mortgage, without cancelling the burden of real estate as an auction under the lien, the buyer acquires the goods."

In light of the above facts in light of the legal principles as seen earlier, since the auction of this case is an auction under the lien, it shall be deemed that the auction of this case was carried out in accordance with the extinction principle in principle unless the court of execution has changed the sale conditions of this case. However, according to the above bidding protocol or the search of auction cases, the possibility that the above execution court changed the sale conditions to proceed with the auction of this case according to the acquisition principle cannot be ruled out, and if the above auction was carried out in accordance with the acquisition principle, the lawsuit of demurrer against distribution of this case shall not be permitted, and if the above auction was conducted in accordance with the acquisition principle, the lawsuit of demurrer against distribution of this case shall be allowed. The court below should have deliberated on whether there was a change in the sale conditions

Nevertheless, the lower court determined that the Defendant’s claim for construction price of this case extinguished by prescription without any deliberation or determination as to the merits, and thus, the lower court erred by misapprehending the legal doctrine as to whether a lawsuit of demurrer against distribution is permissible at an auction under the lien and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Appointeds: Omitted

Justices Lee In-bok (Presiding Justice)