2016Da278432 Demurrer against distribution

Seoul Guarantee Insurance Co.

ordinary community credit cooperatives;

Daegu District Court Decision 2016Na304711 Decided November 30, 2016

July 11, 2017

Of the part against the Defendant, the part of the lower judgment against the Defendant’s restoration is reversed, and that part of the case is remanded to the Daegu District Court Panel Division. The remaining grounds of appeal are dismissed.

1. We examine the appeal on the part of the judgment below regarding the revocation of fraudulent act.

The Defendant appealed against the Defendant in full part of the judgment below against the Defendant, but the revocation part of the fraudulent act did not state the grounds of appeal in the petition of appeal and the appellate brief.

2. We examine the grounds of appeal on the part of the judgment of the court below regarding restitution (revision of the distribution schedule).

(1) The reasoning of the lower judgment and the record reveal the following facts.

① From 198 to 194, B, the debtor against the Plaintiff, completed the registration of creation of a mortgage over the Defendant’s future five times over the instant real estate from 1988 to 1994. ② Upon application by the Defendant, the court of execution commenced the auction procedure on the instant real estate; and on September 9, 2015, the court of execution prepared a distribution schedule that distributes KRW 40,970,140 to the Defendant. ③ On the date of distribution of the instant auction procedure, the Plaintiff, on the ground that the statute of limitations has already expired, raised an objection against the total amount of the Defendant’s dividends, and filed a request for revision of the distribution schedule. ④ Subsequent, on March 7, 2016, the Plaintiff, in excess of the debt B, prepared a written confirmation to the effect that the Defendant would repay his obligation to the Defendant, and sought revocation of the said act, asserting that the said act constitutes a fraudulent act, and, at the same time, drafted the instant preliminary claim for correction of the statute of limitations period, and decided as the instant claim.

(2) In the lower judgment, the lower court determined that the act of preparing a written confirmation of March 7, 2016 as the waiver of extinctive prescription benefits and that the revocation of the said act can immediately rectify the distribution schedule by deeming the same as the waiver of extinctive prescription benefits. As such, the validity of the completion of extinctive prescription of each right to collateral security as to the revocation of the said act is maintained, and as a result, the Defendant appears to be premised on the fact that the said claim cannot be distributed in a voluntary auction procedure by extinguishing the claim. However, if the extinctive prescription was interrupted prior to the completion of extinctive prescription of the said claim, and the extinctive prescription has not yet been completed until the closing of argument in the lower judgment, or if Party B has renounced the benefit of extinctive prescription after the expiration of the extinctive prescription, the Defendant

(3) In the judgment on the primary claim (However, since the plaintiff who lost this part was not a final appeal, this part is not the subject of the judgment at the trial at the time of the trial at the time of preparation of the above written confirmation, the court below acknowledged that the defendant sent to B on March 8, 2007 a notice of the scheduled commencement date of the procedure to urge the repayment of the loan claim of this case, which is the secured claim by the right to collateral security, and that B was granted a grace period. Since the contents of the above written confirmation are to repay the obligation, the preparation of the above written confirmation constitutes "approval of the obligation as the cause of interruption of extinctive prescription or waiver of the benefit of extinctive prescription" depending on the completion of extinctive prescription of each of the secured claims by the right to collateral security. Accordingly, after examining whether the extinctive prescription of the above claim has expired at the time of preparation of the written confirmation, the extinctive prescription

However, the lower court should have deliberated on whether the benefit from extinctive prescription has been terminated or has been renounced. In the part of the judgment on the merits of the preliminary claim, the lower court determined that it was insufficient to recognize the fact that B performed an act of approving the obligation around 2007, while recognizing the fact that B performed an act of approving the obligation. In addition, the lower court did not properly examine whether the act of preparing the said written confirmation constitutes “approval of the obligation as a cause interrupting extinctive prescription or waiver of benefit from extinctive prescription” without disclosing the grounds for such inconsistency, and determined that the distribution schedule can be corrected immediately by revocation of the preparation of the written confirmation dated March 7, 2016. In so doing, the lower court erred by misapprehending the legal doctrine on the interruption of extinctive prescription, waiver of benefit from extinctive prescription, and restitution of the original claim following fraudulent act, thereby

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Decision 200

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Park Sang-ok