[1] Whether the application of Article 681 (1) 2 of the former Civil Procedure Act is excluded in the execution procedure for a foreign ship under Article 688 of the same Act (negative)

[2] The requirements for receiving a distribution regardless of the demand for distribution as the mortgagee of a foreign ship, who is the right holder on the ship entered in the register

[1] Article 688 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) provides that the provisions on procedures to be entered in the register shall not apply to compulsory execution against a foreign vessel. This is the purport that a decision to commence auction cannot be commissioned since there is no registry of a foreign vessel in Korea, and therefore, it cannot be a ground for excluding the application of Article 681 (1) 2 of the same Act, which provides that a foreign vessel shall submit a certified copy or abstract of a registry concerning a ship in the execution procedure for a foreign vessel.

[2] Even if there are circumstances where it is difficult to confirm the legal relationship on the ship registry because an abstract of the registry concerning the ship is difficult to submit in reality in the execution procedure for a foreign ship, such circumstance alone alone is insufficient to present a legitimate mortgagee, who has a legal right to preferential payment as stipulated in Article 605 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002), with respect to a foreign ship, cannot be deemed as identical to a creditor who has a legal right to preferential payment as stipulated in Article 605 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002). Thus, if the mortgagee of a foreign ship established a mortgage pursuant to the law of the country of registry prior to the registration of the decision on commencement of the auction, and established such

[1] Article 688 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (see current Article 186 of the Civil Execution Act) Article 681(1)2 (see current Article 177(1)2 of the Civil Execution Act) / [2] Article 605 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (see current Article 88 of the Civil Execution Act)

X-cellcco Ltd. (Law Firm Cheonghae, Attorneys Seo-ho et al., Counsel for the plaintiff-appellant)

Han Young-gu Co., Ltd. and 11 others (Law Firm Samyang, Attorneys Yu-soo et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2001Na14146 delivered on April 12, 2002

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

1. Summary of the judgment of the court below

The court below determined that the plaintiff, as the crew of the court of execution and the plaintiff 21, did not request a distribution of dividends to the 3rd party 5th party 20th party 7th party 20th party 20th party 16th party 20th party 16th party 4th party 2th party 16th party 5th party 16th party 5th party 2th party 16th party 5th party 1st party 16th party 5th party 16th party 5th party 16th party 5th party 2th party 5th party 16th party 5th party 1st party 16th party 5th party 16th party 16th party 16th party 200 party 1st party 207 party 20th party 1st party 200 party 16th party 20 party 20th party 16th party 20 party 20.

2. The judgment of this Court

The above judgment of the court below is hard to accept.

Article 688 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) provides that the provisions on procedures for compulsory execution on a foreign ship shall not apply to compulsory execution on a foreign ship. This purport is that it is impossible to request a decision on commencement of auction, etc. on the ground that there is no foreign ship registry in Korea, nor can it be a ground for excluding the application of Article 681 (1) 2 of the same Act, which provides that a foreign ship shall submit a certified copy or abstract of the registry concerning the ship in an enforcement procedure on a foreign ship. In addition, even if there are circumstances where it is difficult to verify legal relationship on the ship registry because the certified copy or abstract of the registry concerning the ship is difficult to be submitted in reality, such circumstance alone cannot be the same as a creditor who has legal preferential right as stipulated in Article 605 of the same Act with respect to a foreign ship, so if a person who has the right to demand commencement of the sale on a foreign ship establishes a mortgage prior to the registration procedure on the ship.

Nevertheless, the judgment of the court below that the mortgagee of a foreign ship can receive the distribution only by the successful bid date pursuant to Article 605 of the former Civil Procedure Act, is erroneous in the misunderstanding of legal principles as to the position of mortgagee in executing a foreign ship, which affected the conclusion of the judgment.

3. Conclusion

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.

Justices Kim Yong-dam (Presiding Justice)