In a case where a creditor, who has an executory exemplification of judgment, has a right to collateral security to secure a claim, and the auction court has apportioned the distribution in the priority order within the scope of the maximum debt amount of the right to collateral security, whether the debtor may contest against the objection

An obligor who has raised an objection to the distribution to a creditor with an executory exemplification of a judgment shall file a lawsuit of demurrer against a claim, not a lawsuit of demurrer against a distribution. However, in cases where a creditor who has an executory exemplification of judgment claims the right to preferential reimbursement and makes a demand for distribution based on the security right, it does not constitute the basis of the distribution, since the security right is not an executory exemplification. Therefore, when a debtor seeks to dispute the existence and scope, etc. of a secured claim that may have preferential right to reimbursement as to the distribution of a security right, he/she shall be exempted from a lawsuit of demurrer against a distribution, and there is no need to file a lawsuit of demurrer against a claim necessary to exclude the executory power of the executory judgment. Therefore, if a creditor who has an executory exemplification of judgment has the right to demand a distribution within the scope of the maximum debt amount

Article 154 of the Civil Execution Act

Supreme Court Decision 2010Da70018 Decided July 28, 2011 (Gong2011Ha, 1749)

Plaintiff (Appointed Party)

Defendant

Changwon District Court Decision 201Na8861 decided May 2, 2012

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

The grounds of appeal are examined.

A debtor who has raised an objection to the distribution to a creditor with an executory exemplification of judgment shall file a lawsuit of demurrer against distribution, not a lawsuit of demurrer against distribution. However, in cases where a creditor who has an executory exemplification of judgment claims preferential payment right and makes a demand for distribution based on the security right, it is not an executory exemplification of judgment. Therefore, when the debtor seeks to dispute the existence and scope, etc. of the secured claim having preferential payment right to the distribution of the security right, the debtor is exempted from disputing the lawsuit of demurrer against distribution, and it is not necessary to file a lawsuit of objection against a claim necessary to exclude the executory power of the executory judgment (see Supreme Court Decision 2010Da7018, Jul. 28, 201). Therefore, if a creditor who has an executory exemplification of judgment has a right to collateral security right to secure the relevant claim and the auction court has conducted a distribution within the scope of the maximum debt amount of the right to demand distribution, the debtor who has raised an objection to the distribution may bring an objection against the distribution in

According to the reasoning of the judgment below and the records, the compulsory auction procedure for the real estate of this case was conducted upon the application of the defendant with an executory exemplification of the judgment against the plaintiff (designated party, hereinafter "the plaintiff") and the designated party. The defendant received a registration of creation of a neighboring mortgage concerning the real estate of this case in order to secure some of the claims ordered to pay to the plaintiff et al. in the original copy of the judgment above. The auction court recognized the defendant's claim, which is the applicant for auction, within the scope of the maximum debt amount, within the scope of the above maximum debt amount, and prepared a distribution schedule to distribute dividends of KRW 76,250,856 to the defendant by recognizing the distribution order that the defendant can be preferentially reimbursed as a mortgagee, and the plaintiff et al. asserted that the amount of the claim does not reach the above dividends

According to these facts, the above dividends against the defendant are based on the right to collateral security, which is the security interest of the defendant, and the lawsuit of demurrer against the distribution of this case filed by the plaintiff et al. is ultimately intended to dispute the existence and scope of the secured claim of the above right to collateral security. In light of the above legal principles, even if the defendant has an executory exemplification, the lawsuit of demurrer against the distribution of this case filed by the plaintiff et al. shall be deemed lawful. Nevertheless, the court below's decision that judged the lawsuit of demurrer against the distribution of this case as unlawful and dismissed is erroneous in the misapprehension of legal principles as to the lawsuit of demurrer against the distribution, and it has affected the judgment. The

Therefore, 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 Selections: Omitted

Justices Kim Chang-suk (Presiding Justice)