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(영문) 대법원 2015.06.11 2015다10523
배당이의
Text

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

Reasons

The grounds of appeal are examined.

1. If the provisional seizure order issued by the creditor has been revoked, the creditor loses the status of receiving a dividend as the creditor of provisional seizure. Therefore, revocation of the provisional seizure order may constitute a ground for demurrer against the distribution against the creditor of provisional seizure in a lawsuit of demurrer against distribution.

Furthermore, in a lawsuit of demurrer against distribution, the Plaintiff may assert the grounds that occurred after the date of distribution and until the date of closing argument in the fact-finding court (see, e.g., Supreme Court Decision 2007Da27427, Aug. 23, 2007). As such, even in cases where the provisional attachment order was revoked during the lawsuit of demurrer against distribution after the date of distribution, the Plaintiff

2. According to the reasoning of the lower judgment, the lower court acknowledged the following facts: (a) on August 13, 2013, the date of distribution of F real estate auction case of the Jeonju District Court, the Plaintiff, a mortgagee of the collective security on August 13, 2013, filed an objection to the entire amount of dividends against the Defendant, who was the person holding the provisional seizure, and filed a lawsuit of demurrer to the distribution on August 19, 2013; and (b) on the ground that the Defendant’s provisional seizure decision (the Jeonju District Court 94Kadan4092, the first NN succeeded to the Defendant’s succession to the provisional seizure order) was executed on the ground that the provisional seizure was not filed within ten (10) years after the provisional seizure was executed, and the revocation of the provisional seizure was confirmed on November 6, 2013, and the said revocation of provisional seizure became final and conclusive on November 20, 2013. The lower court erred by misapprehending the relevant legal doctrine and thus, did not err in its judgment.

3. 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 on the bench.

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