[1] The meaning of "expenses necessary for compulsory execution" under Article 53 (1) of the Civil Execution Act

[2] In a case where the property for the purpose of a fraudulent act is restored to the debtor's responsible property by a lawsuit for revocation of a fraudulent act and the compulsory execution procedure therefor is in progress, the case holding that the litigation costs, etc. incurred in the lawsuit for revocation of a fraudulent act do not constitute "expenses necessary for compulsory execution" that can

[1] Costs necessary for compulsory execution shall be borne by the debtor and reimbursed preferentially by the execution (Article 53(1) of the Civil Execution Act). Execution costs, without executive title, may be apportioned from the Distribution Foundation in preference to each amount of claims. Here, execution costs refer only to the execution costs to be preferentially reimbursed from the Distribution Foundation, not to the whole costs incurred by each creditor, and those corresponding thereto are limited to the execution costs (public interest costs) having the character of expenses incurred for all creditors through the relevant auction procedure. Execution costs include expenses necessary for preparing and executing civil execution.

[2] In a case where the property which became the object of a fraudulent act by a lawsuit for revocation of a fraudulent act is restored to the debtor's responsible property and the compulsory execution procedure therefor is in progress, the case holding that the litigation expenses incurred in the lawsuit for revocation of a fraudulent act, the expenses incurred in the provisional disposition against disposal of real estate for preservation of the right to claim for revocation of a fraudulent act, the expenses incurred in the registration of cancellation of transfer of ownership caused by a fraudulent act does not constitute "expenses necessary for compulsory execution"

[1] Article 53(1) of the Civil Execution Act / [2] Article 53(1) of the Civil Execution Act, Article 406(1) of the Civil Act

(Attorney Seo-hee, Counsel for the defendant-appellant)

Korea

Gwangju District Court Decision 2010Na2622 Decided August 25, 2010

The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

The grounds of appeal are examined.

Expenses incurred in compulsory execution shall be borne by the debtor and reimbursed preferentially by the execution thereof (Article 53(1) of the Civil Execution Act). Execution expenses, without title, may be apportioned in preference to each amount of claims from the Distribution Foundation. Here, the execution expenses refer only to the execution expenses to be preferentially reimbursed from the Distribution Foundation, not to include the whole expenses paid by each creditor. The execution expenses refer only to the execution expenses to be preferentially reimbursed from the Distribution Foundation, and those corresponding thereto are limited to the execution expenses (public interest expenses) having the character of expenses incurred for all creditors through the auction procedure. Execution expenses include the expenses necessary for preparation and enforcement of civil execution

Based on the above legal principles, if the property which became the object of a fraudulent act is restored to the debtor's responsible property and the procedure of compulsory execution is initiated against the restored property, the costs of the lawsuit for the revocation of the fraudulent act, the costs of the lawsuit for the prohibition of provisional disposition on disposal of the real estate for the preservation of the right to claim for cancellation registration based on the fraudulent act, the costs of the registration on cancellation of ownership transfer registration based on the fraudulent act (hereinafter referred to as "litigation costs, etc.") may be preferentially reimbursed by the execution of the costs necessary for compulsory execution.

In principle, the costs of fraudulent act by the creditor before the establishment of enforcement title are not included in the costs of civil execution; when the amount of costs of lawsuit is not determined in the judgment determining the costs of lawsuit (Article 110(1) of the Civil Procedure Act). On the other hand, there is a difference between the creditor and the other party's property subject to compulsory execution without any separate enforcement title (Article 53(1) of the Civil Execution Act). In a lawsuit seeking revocation of fraudulent act by the creditor is only the defendant against the beneficiary or subsequent purchaser and there is no standing for the debtor (see Supreme Court Decision 2008Da72394, Jan. 15, 2009, etc.), the costs of lawsuit by the creditor or subsequent purchaser are to be borne by the creditor who is not entitled to receive reimbursement of the costs of lawsuit before the revocation of compulsory execution, and the costs of lawsuit are to be borne by the creditor or subsequent purchaser before the creditor who is entitled to preferential reimbursement of the costs of lawsuit that are to be borne by the creditor or subsequent purchaser.

Nevertheless, the court below accepted the plaintiff's claim of this case on the premise that the litigation cost, etc. paid in order to revoke the fraudulent act in the judgment, is the execution cost that can be preferentially reimbursed by the execution of the apartment of this case. The court below erred by misapprehending the legal principles as to the scope of execution cost, which affected

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)