Korea Technology Finance Corporation (Law Firm Man-Ma, Attorneys Cho Byung-jin, Counsel for defendant-appellant)

Defendant (Law Firm Shin, Attorneys Cheong Young-soo et al., Counsel for the defendant-appellant)

November 19, 2014

Daegu District Court Decision 2013Da11672 Decided July 9, 2014

1.The judgment of the first instance shall be modified as follows:

In the Daegu District Court Decision 2013Tagi414, the distribution amount of 49,989,793 won against the defendant among the distribution schedule prepared by the said court on October 16, 2013, shall be deleted, and the amount of 88,347,295 won against the plaintiff shall be corrected to 138,337,088 won.

2. All costs of the lawsuit shall be borne by the defendant.

The part of the judgment of the first instance against the plaintiff shall be revoked. It is so decided as per Disposition.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each entry in Gap's 1 to 6, 9, and Eul's 1 to 11 (including each number; hereinafter the same shall apply):

A. Based on the original copy of the rehabilitation creditors’ list of the Daegu District Court 2012 Ma47, the Plaintiff received the order of seizure and collection (hereinafter “the first claim seizure and collection order”) from the above court on June 5, 2013 with respect to the claim for the price of goods (hereinafter “the claim for the price of the goods in this case”) which the Daegu District Court Kimcheon Branch 2013T&T Co., Ltd. (hereinafter “Korea Forest T&T branch”) holds against the Korea Land Management Corporation (hereinafter “Korea Land Management Corporation”), and issued the order of seizure and collection (hereinafter “the claim amount 2,00,853,789”). The above order was served on the Korea Land Management Corporation on June 13, 2013.

B. Defendants and 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 17, 18, 19, 20 (hereinafter “Defendants, etc.”) have a total of 49,989,793 preferentially reimbursed wage claims against Han C&P’s employees as Han C&P. On July 4, 2013, Han C&P was a notary public of Korea on July 4, 2013, and was prepared as a notarial deed by the Defendant, etc. as a designated party to a notarial deed, and was performed by the Defendant, etc. up to the said 49,989,79,793 (hereinafter “Defendants, etc.”). The repayment rate of KRW 49,983,799,793, Jul. 13, 2013.

C. After again selecting the Defendant as the designated party, the Defendant, etc. applied for the seizure and collection order (the requested amount KRW 49,989,793) regarding the claim for the goods of this case on the basis of the instant notarial deed, and received a decision of the seizure and collection order (hereinafter “instant secondary seizure and collection order”) from the said court on July 23, 2013, 201. The said decision was served on the Korea Branch on August 5, 2013.

D. As to the claim for the price of the goods of this case, Korea Branch issued a provisional seizure (i.e., Daegu District Court 2013Kadan2663, claims amounting to 80,210,700, April 26, 2013; (ii) Daegu District Court 2013Kadan3795, claims amounting to 60,210,700, May 27, 2013; (iii) the seizure of claims by Dongnam District Court 2013TTTT and the collection order (Seoul District Court 2013Ma188, 140,000, 140,000, 200, 70, 301, 37, 201, 37, 2017, 37, 2017, 37, 2017, 37, 2017, 37, 2017, 37, 17, 37, 2017, etc.).

E. Regarding the above enforcement deposit, the Daegu District Court Kimcheon-ok established the distribution procedure for the said deposit (hereinafter “instant distribution procedure”) on October 16, 2013 on the grounds that the distribution procedure for the said deposit was commenced, and prepared a distribution schedule (hereinafter “instant distribution schedule”) stating that: (a) the Defendant, the wage obligee, etc., as the Defendant, etc., was the party to the distribution; (b) KRW 49,989,793; (c) KRW 88,347,295, and (d) the Plaintiff, the collection obligee; (d) KRW 6,181,671; (e) KRW 6,181,671; (e) KRW 5,630,715; and (e) KRW 7,506,316, to the Hanjin-man Co., Ltd., the person having the right to demand distribution.

F. On October 16, 2013, the Plaintiff appeared on the aforementioned date of distribution, and raised an objection against the full amount of KRW 49,989,793 distributed by the Defendant, etc. among the instant distribution schedule, and then filed the instant lawsuit on October 22, 2013.

G. Meanwhile, on the basis of the instant notarial deed, the Defendant, etc., as the designated party, requested the Daegu District Court Kimcheon Branch 2013TTW 2945 to order the seizure and collection of the instant claim against the Republic of Korea (the requested amount KRW 49,989,793), and received a decision of the above court to order the seizure and collection of the said claim (hereinafter “instant third claim seizure and collection order”) on August 30, 2013. The said decision was served to the Republic of Korea around that time.

2. The plaintiff's assertion

The defendant et al. selected the defendant as the appointed party in the distribution procedure in this case, and the execution court paid the full amount of the dividends of the defendant et al. to the defendant who is the appointed party. The effect of the act of selection in the distribution procedure lies in the lawsuit of demurrer against distribution in this case, or is the party who has become the party to the lawsuit of demurrer against distribution in the distribution procedure. Thus, the lawsuit of demurrer against the defendant et al. raised after the defendant et al. raised an objection against the full amount of the dividends in the lawsuit of demurrer against distribution against the defendant et al. can only

On the other hand, the defendant et al. did not demand a distribution to the executing court until the report of the reasons for the deposit in this case by the Korea Branch M, which is the third debtor, the completion period to demand a distribution, and only after that period, the effect of the seizure and collection order of the case 2, 3 and 4 became effective. Thus, the distribution amount against the defendant et al. shall be deleted in entirety and distributed to the plaintiff.

3. Determination

A. Scope of adjudication on the lawsuit of demurrer against the distribution of this case

On the other hand, the validity of the act of selecting the defendant, etc. as the appointed party in the distribution procedure of this case cannot be deemed to have extended to the lawsuit of demurrer against distribution of this case, which is separate proceedings independent from the above distribution procedure.

However, in case where the selected parties have been selected, only the designated parties are the parties to the relevant procedure (see Article 53 of the Civil Procedure Act), and the other party to a lawsuit of demurrer against distribution is the creditor designated by the person who raised an objection on the date of distribution as the other party. As seen earlier, insofar as the plaintiff raised an objection against the defendant, who is the creditor of the distribution procedure of this case, against the defendant as the creditor of the distribution procedure of this case, as long as the defendant raised an objection against the entire amount entered in the distribution schedule, it is reasonable to view that the

Therefore, in the distribution procedure of this case, it is necessary to judge the plaintiff's claim against the whole amount distributed to the defendant as the designated party.

B. Determination on the legitimacy of the distribution

Article 247(1)1 of the Civil Execution Act provides that even though a wage creditor who has a preferential right to payment may demand a distribution to a court until a third-party debtor files a report on the grounds for deposit under Article 248(4), and limits the completion period to demand a distribution. The creditor who failed to demand a distribution by such time shall be excluded from the distribution (see Supreme Court Decisions 98Da62688, May 14, 199; 2006Da74693, May 15, 2008).

However, the order of seizure and collection of the second claim of this case was served on August 5, 2013 on and after July 30, 2013, the date on which the reason for the deposit of this case was reported to the Korea Branch M, which is the garnishee, as seen earlier, and the defendant (including the appointed parties) presented to the court of execution a document stating the reason and amount of the claim, prior to the date on which the reason for the deposit of this case was reported. Thus, inasmuch as there is no evidence to prove the fact that the claim for the price of the goods of this case was seized or provisionally seized by using the amount of the claim for the wage as the amount claimed from the court, the defendant did not demand a distribution to the court of execution until the date on which the reason for the deposit of this case was reported, it is reasonable to view that the defendant was not in the position to receive a distribution concerning the claim for the goods

C. Sub-committee

Therefore, out of the instant distribution schedule, the amount of dividends to the Defendant should be deleted, and KRW 88,347,295,295 should be corrected to KRW 138,37,088 ( KRW 88,347,295 + KRW 49,989,793) by allocating the said amount to the Plaintiff.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and since part of the decision of the court of first instance different from this conclusion is unfair, it is so decided as per Disposition with the decision of the court of first instance as above.

Judges Kim Jong-sung (Presiding Judge) (Presiding Justice)