Plaintiff (Attorney Lee Han-chul, Counsel for the plaintiff-appellant)

Credit Guarantee Fund (Attorneys Yu Byung-il et al., Counsel for the plaintiff-appellant)

October 22, 2004

Daejeon District Court Decision 2004Kadan1888 Delivered on July 15, 2004

1. The appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

Of the distribution schedule prepared by the above court on January 28, 2004 with respect to the distribution procedure case of the Daejeon District Court Support (Case No. 1 omitted), the amount stated in the "amount of dividends" in the attached Table to the defendant 214,397 won, the amount stated in the "amount of dividends" in the attached Table to the plaintiff (Appointed 2, 2401, 240 won against the defendant, the plaintiff (Appointed 2, hereinafter referred to as the plaintiff), and the designated parties shall be corrected by each amount stated in the "amount of overdue wages"

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Facts of recognition;

The following facts are not disputed between the parties, or may be acknowledged by considering the whole purport of the pleadings in each entry in Gap evidence 1 through Gap evidence 6 (including the paper number):

A. The plaintiff and the designated parties are the workers of the non-party Korea Industrial Co., Ltd. (hereinafter referred to as the "Korea Industrial Co., Ltd."), and have wage claims for each our industry, such as the statement in the column of "amount of overdue wages" in the attached Table.

B. On November 19, 2003, the Korean industry transferred KRW 51,453,416 out of the total purchase price support (case number omitted) principal and interest and litigation costs claims based on the final judgment of the Daejeon District Court (case No. 1) purchase price case to the Plaintiff who was appointed to be the representative of the Plaintiff and the designated parties, and sent the said transfer to the Pacific on the same day by mail with a certified contents of the fixed date. On the same day, the Plaintiff agreed to pay the said amount to each of the designated parties according to the credit details of the “amount of overdue interest” column in the attached Table.

C. On November 25, 2003, 203, 33,401,240 won of the provisional seizure order (case number omitted), provisional seizure order (case number omitted), provisional seizure order (case number omitted), provisional seizure order of KRW 100,000 of the provisional seizure amount, delivery date on November 22, 200 of the above claims against the Plaintiff on the ground that the above assignment of claims against the Plaintiff (the delivery date of content-certified mail No. 11, 2003) competes with the above assignment of claims (the above assignment date of November 21, 2003) and the above assignment of claims against the Defendant (the above assignment date of claims No. 51,97,213 won) were stated in the provisional seizure order (the above assignment date of claims No. 121, 2003) by the Defendant and the above notification No. 2816,281,616, Nov. 25, 2003).

D. Accordingly, the court of execution commenced the procedure for distributing the claims to the court of execution (case number omitted), and served a notice of the date of distribution set by 0:00 on January 28, 2004 on the date of distribution to the original and the defendant and the new bank.

E. On January 20, 2004, the Plaintiff submitted to the executing court a statement of claim statement to the effect that there is a wage claim such as the statement on the "amount in arrears" in the attached Table attached hereto, along with a confirmation of the existence of delayed payment of wages by the head of the office of regional labor affairs in Incheon District Office, a notice of national pension information data prepared by the President of the National Pension Management Corporation, and a list of National Health Insurance Insurance Insurance Policyholders in the National Health Insurance Corporation, etc. prepared by the National Health Insurance Corporation. However, on January 28, 2004, the executing court should first distribute the above amount to the Plaintiff. However, on the date of distribution procedure of claim distribution, the provisional seizure order of the Defendant on the date of distribution of claims was priority over the notice of the Plaintiff's assignment of claims, and the Defendant shall distribute the above provisional seizure amount of KRW 33,401,240 to the Defendant in the first order, and only the remaining 18,26,573 won shall be divided

F. Accordingly, the Plaintiff appeared on the aforementioned date of distribution and raised an objection, and thereafter filed the instant lawsuit on February 3, 2004.

2. The parties' assertion

The plaintiff takes over KRW 51,453,416 from the Daejeon District Court (Case No. 1 omitted) support (Case No. 5) purchase price case, principal and interest based on the final judgment of the purchase price case, and the claim for payment of litigation costs, which the Korean industry has been paid for the case, and Article 37 of the Labor Standards Act limits part of the effect of general security rights at the high public demand in order to guarantee workers' minimum living, and the defendant also did not separately demand the distribution prior to the report of the deposit cause of the case, since the Korean industry did not separately demand the distribution prior to the report of the deposit cause of the case, it shall be deemed that the plaintiff et al. made the legitimate demand for distribution prior to the report of the transfer of claims on the case of the case of the case of the case of the Ortotototototo, and accordingly, the defendant asserted that the defendant has the right to receive the distribution as the wage creditor prior to the notification of the provisional seizure decision by the defendant to the plaintiff and the designated person prior to the report of the transfer of claims to the defendant.

3. Determination

A. Whether the execution deposit of this case is lawful

Article 581(1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002; hereinafter the same applies) provides that the deposit may be made only when the seizure is concurrent (see Article 581(1)). Under the former Civil Procedure Act, the right to deposit is recognized only when the creditor concurrently competes with the third debtor, such as the seizure competition or at least duplicate seizure. Therefore, if the same does not apply, the report on the reason for deposit shall be dismissed and the distribution procedure shall not be taken place. However, under the amended Civil Execution Act, the amended Civil Procedure Act allows the creditor to deposit not only the amount equivalent to the seized claim amount, but also the entire amount of the seized claim amount even if the creditor does not compete (see Article 248(1)), and the report on the reason for deposit in cases where the seizure does not coincide is lawful, which is the same in cases of provisional seizure

The provisional attachment order of this case has relative effect in the sense that the debtor's disposal is not absolute, and the provisional attachment order of this case has relative effect in the sense that the debtor's disposal is not set up against the execution creditor and the execution creditor who participated in the execution after the provisional attachment order of this case had been served on the third debtor, and the provisional attachment order of this case can be set up against the creditor who participated in the execution after the provisional attachment order of this case can not set up against the execution creditor even if there are circumstances that make it possible for the creditor to set up the provisional attachment after the provisional attachment order of this case and the provisional attachment order of this case cannot be set up against the creditor who participated in the execution after the provisional attachment order of this case (see Supreme Court Decision 2003Da22561, Sep. 3, 2004). Thus, the provisional attachment order of this case and the provisional attachment order of this case cannot be set up against the new creditor (see Supreme Court Decision 2003Da225614, Sept. 3, 2004).

B. Whether to recognize preferential payment right as wage creditors

The decision of the court after the arrival of the original copy of the decision of provisional seizure against the third debtor (in the case of a transfer of claims, the debtor) is to prevent the risk of double repayment of the third debtor due to the effect of the prohibition of disposition of provisional seizure. Meanwhile, Article 37 of the Labor Standards Act provides that the right to preferential payment of wage claims is a so-called legal security right that can be given preferential satisfaction through the general execution procedure to guarantee the minimum standard of living of workers. As in this case, as in this case, the designated parties delegated the plaintiff with the right to receive the collection of overdue wages to the plaintiff, the Korean industry transferred the same claim to the plaintiff as to Atotototototo, and as a preservative measure of the defendant's our industry prior to the notification of the transfer, it is a preservative measure of the above judgment claim against the third debtor's our industry prior to the notification of provisional seizure, and it conflicts with the effect of the transfer of claims and provisional seizure and thus, it still does not have any legal limitation on the right to preferential payment in the distribution procedure to the third debtor (the debtor).

C. Termination period to receive preferential dividends by clarifying that the Plaintiff is a wage obligee

In addition, even though it is a wage creditor who has preferential right to demand a distribution under the Labor Standards Act, it is in principle capable of receiving a preferential distribution only by the completion period of the demand for distribution in the enforcement procedure. However, in the case where the distribution procedure is in progress by the third debtor's deposit, the notification of the transfer of claims to the plaintiff before the execution deposit and the arrival of the original copy of the decision of provisional seizure by the defendant was reached. If the third debtor deposits the execution for the above reasons, even though he did not demand a distribution before the report of the reasons for the deposit of the above, the transferee of the claim naturally treats the same as the demand for distribution, and does not exclude the demand from the demand for distribution even if he did not separately submit the claim statement, so if he did not request the procedure required to ensure the stability of the civil execution procedure and the substantive legal request to protect the worker's wage claims, and if he did not receive the plaintiff's preferential right to demand a distribution from our industry prior to the completion period of the demand for distribution, the plaintiff did not receive a preferential right to demand a distribution from the plaintiff 20.

(d) the existence of the demand for distribution;

In addition, even though the plaintiff needs to demand a distribution prior to the report on the reasons for the deposit of the standingto a specific district, which is the completion period to demand a distribution, in the distribution procedure by the deposit of the execution, no strict form is required for the demand for distribution under the execution procedure. Thus, in the case where the distribution procedure commences immediately by making a provisional seizure decision and the notification of the assignment of claims, as in this case, the notification of the transfer of claims, which is the reasons for the execution deposit, may be deemed to be a demand for distribution. Accordingly, in full view of the fact that the execution court served the notification of the date of distribution on the plaintiff and the designated parties, and the plaintiff submitted the claim statement by clarifying that the plaintiff and the designated parties are the wage creditors, the plaintiff and the designated parties may participate in

E. Whether the statute of limitations expired

In regard to this, the defendant alleged that wage claims against the Korean industry of the plaintiff and the designated parties have expired by the lapse of the three-year statute of limitations from December 13, 1999, which is the date of debt approval. However, as long as the Korean industry transferred the above claim to the plaintiff on November 19, 2003 for the repayment of the above wage claims to the plaintiff on November 19, 2003, this constitutes the waiver of the debt approval and the statute of limitations. Thus, the defendant's above assertion

F. Sub-committee

Therefore, among the distribution schedule prepared by the above court on January 28, 2004 with respect to the distribution procedure case of the Daejeon District Court Support (Case Number omitted), the dividend amount of 33,401,240 won against the defendant shall be 214,397 won, and the dividend amount of the attached Table "amount" against the plaintiff and the designated parties shall be 214,397 won, and the dividend amount in the attached Table "amount" to the "amount of overdue wages" under the same Table shall be overruled

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is just and the defendant's appeal is dismissed on the grounds of its merit, and it is so decided as per Disposition.

[Attachment List omitted]

Judges Shin Jae-young (Presiding Judge)