[1] In a case where a creditor who has the right to preferential reimbursement under the substantive law fails to make a lawful demand for distribution by the deadline for the completion of the demand for distribution, whether it is excluded from the distribution (affirmative), and whether it is possible to add and expand the remainder after having demanded only a part of the amount of the claim (negative)

[2] Specific extent of "a ground for a claim" to be stated in the written demand for distribution

[3] The method to determine whether a claim for distribution contains a retirement allowance in the case where a claim for distribution was stated only as “wages” and a claim statement stating a retirement allowance claim in addition after the completion period for the demand for distribution was submitted

[1] A creditor who has an executory exemplification, a creditor who has effected a provisional seizure subsequent to the registration of a decision on commencing the commencement of a demand for distribution, or a creditor who has the right to demand a preferential reimbursement under the Civil Act, the Commercial Act and other Acts, may receive a distribution only by the case where he has made a demand for distribution not later than the completion period of the demand for distribution. In the case where a legitimate demand for distribution has not been made, even though he has the right to demand a preferential reimbursement under the substantive Acts, he shall not receive a distribution from the proceeds of sale, and even if he has made a demand for a distribution by the completion

[2] In the case of a demand for distribution, the written demand for distribution shall be accompanied by an executory exemplification or a copy thereof, and other documents proving the qualification for a demand for distribution, and shall state the cause and amount of the claim. In this case, “the cause of the claim” shall be sufficient if it is stated to the extent sufficient to specify the cause and claim possessed by the creditor demanding distribution against the debtor. However, in the case of a demand for distribution not based on an executory exemplification, a detailed indication of the cause of the claim is required to

[3] Considering that retirement allowances, in essence, have the nature of a later-paid wage, even if the cause of a claim for distribution was stated in the demand for distribution only as “wages” may be included in the said wage, so it is necessary to carefully determine it. However, according to the content and attached documents, if it is evident that the wage claim does not include a retirement allowance claim in the demand for distribution, it cannot be deemed that the demand for distribution includes a retirement allowance claim in such demand for distribution. It is natural that the addition of a retirement allowance claim in the statement of claim submitted after the completion period for the demand for distribution, or that the amount of the wage claim for which a demand for distribution was made exceeds the final three months which are repaid as the top priority pursuant to Article 38(2) of the Labor Standards Act, and thus, it does not change because there is a part

[1] Articles 88(1) and 148 subparag. 2 of the Civil Execution Act / [2] Article 88(1) of the Civil Execution Act, Article 48 of the Civil Execution Rule / [3] Articles 88(1) and 148 subparag. 2 of the Civil Execution Act, Article 48 of the Civil Execution Rule, Article 38(2) of the Labor Standards Act, Article 11 of the Guarantee of Workers' Retirement Benefits Act

[1] Supreme Court Decision 9Da11526 delivered on March 23, 2001 (Gong2001Sang, 930) Supreme Court Decision 2001Da11055 Delivered on January 25, 2002 (Gong2002Sang, 559) Supreme Court Decision 2005Da14595 Delivered on August 25, 2005 (Gong2005Ha, 1559)

Plaintiff (Attorney Yang Byung-jin, Counsel for the plaintiff-appellant)

A limited liability company specialized in the sale and purchase securitization;

Suwon District Court Decision 2007Na25770 decided August 13, 2008

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff (Appointed Party).

The grounds of appeal are examined.

A creditor who has an executory exemplification, a creditor who has effected a provisional seizure subsequent to the registration of a decision on commencement of distribution, or a creditor who has the right to demand a preferential reimbursement under the Civil Act, the Commercial Act or other Acts, may only receive dividends by the completion period for a demand for distribution. In cases where a legitimate demand for distribution has not been made, even if he/she is a creditor who has the right to demand a preferential reimbursement under the substantive Acts, he/she shall not receive dividends from the proceeds of sale, and even if he/she has demanded a partial demand for distribution by the completion period for a demand for distribution, he/she may not add or expand any claim that has not been demand for distribution after the completion period for a demand for distribution (see Supreme Court Decisions 9Da11526, Mar. 23, 201; 201Da1055, Jan. 25, 2002; 2005Da14595, Aug. 25, 2005).

According to the facts and records acknowledged by the court below, the plaintiff (appointed party; hereinafter "the plaintiff") submitted a written demand for distribution to the court of execution on September 1, 2006, which was 92,694,314 won prior to the completion period to demand distribution in the real estate auction case of this case ( September 12, 2006). The above written demand for distribution was stated only as "wages". The plaintiff submitted a written demand for distribution to the court of execution on January 22, 2007, which included 92,694,314 won as well as 22,54,394 won as retirement allowance claims of the appointed party, 305,000 won as well as 306 won as retirement allowance claims of this case, which were 115,239,707 won as well as 205 won as retirement allowance claims of this case, and submitted to the non-party 205,304,714,000 won as above.

In the same purport, the court below is just to dismiss the plaintiff's claim seeking correction of the distribution schedule of this case by reducing the amount of retirement allowance from the defendant's dividend amount and distributing it to the plaintiff, and there is no error of law such as misunderstanding of legal principles or violation of precedents as alleged in the grounds of

Supreme Court Decision 2002Da52312 Decided July 22, 2004 cited in the ground of appeal by the plaintiff, where a wage creditor who has preferential right to payment has seized real estate for the purpose of auction before the commencement of the auction procedure, even though the court did not vindicate that it is a preferential right to demand distribution by the completion date of the auction procedure, if it is proved that it is a preferential right to demand the provisional seizure claim before the distribution schedule becomes final and conclusive, it may receive a preferential distribution. Thus, it is inappropriate to invoke this case, unlike this case where there was no provisional seizure of real estate for the purpose of auction before the commencement of the auction

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ran (Presiding Justice)