Summary
This chapter preserves the scope of automatic participation, such as mortgages registered before the statutory point in time, and the possibility, recognized in precedent, of proving wage claims.
3.1The Standard by Which the Path Opens
The principle of the relevant precedent is, first, that even a wage claim creditor with priority must make a lawful demand for distribution, and it separates this from the exceptional participatory status. One must not close even the door to the exception in order to make the principle simple. The same is true of the circumstances of Creditor A. A asserts a right to preferential payment, but no record remains as to whether a demand for distribution was made. One must first ask whether A can be pushed out of distribution on the strength of this record alone, or whether the door known as the scope of automatic participation remains open.
Article 148 of the Civil Execution Act sets out four categories of creditors who are to receive distribution of the amount provided in Article 147 (1). The wording—"1. A seizing creditor who filed an application for auction by the deadline for demand for distribution; 2. A creditor who made a demand for distribution by the deadline for demand for distribution; 3. A provisional attachment creditor whose attachment was registered before the first registration of the auction commencement decision; 4. A creditor holding a mortgage, a right to lease on a deposit basis, or another right to preferential payment that was registered before the first registration of the auction commencement decision and is extinguished by the sale"—fixes the subject and the point in time separately for each subparagraph. This provision defines only the range of participants and does not address determinations outside those requirements.
In accordance with this wording, Supreme Court Decision 2015Da204762 decided August 19, 2015 treats "a maximum amount mortgagee whose right was registered before the registration of the auction commencement decision and is extinguished by the sale" as "a creditor entitled to distribution as a matter of course even without making a demand for distribution." Unlike the scope of automatic participation, in which the statutory requirements are verified by registration—as with a maximum amount mortgage—a priority wage claim must separately demonstrate its status. Thus the precedent permits preferential distribution where the creditor, "even if by the deadline for demand for distribution it did not substantiate that the claim is a wage claim with priority … substantiates it before the distribution schedule is finalized." Whether a demand was made and the substantiation of its content are distinct stages of adjudication.
Yet the counterargument that the exception makes distribution practice hard to predict cannot be taken lightly. The substance of it is that it is unjust for claims deserving protection to be pushed aside for a merely formal omission of a demand for distribution, and that creditors can hardly know in advance who must submit which documents and when. Even so, one cannot write that a separate demand for distribution is mandatory for every creditor. That is because subparagraphs 3 and 4 of Article 148 already fix in wording those who enter without any separate demand.
Returning to the synthetic scene, A's assertion of a right to preferential payment and the absence of any record of a demand for distribution are considered together. These circumstances alone do not verify whether an automatically participating right was registered or when the demand and submission were made, and so exclusion cannot be confirmed. Conversely, if it is confirmed as an automatically participating right registered before the statutory point in time, exclusion is not confirmed merely on account of the omission of a separate demand for distribution. The scope of automatic participation means the range of creditors who participate by satisfying the statutory requirements without a separate demand for distribution, and whether registration occurred is verified from the registry of the right and the deadline for demand for distribution and from the records of the application and the distribution schedule.
Only by reading the matter in this way can one separately discern the presence or absence of a demand and the point in time of substantiation; and if a person files within the deadline the action corresponding to the objection together with documents, specifies the performance, the parties, and the conditions, and defends the right of the chosen action, the channel of this relief opens. Only after that channel is established can one then examine how much of the distributed money actually goes to whom. However, the practice of that payment and recovery and its relationship to assumption fall outside the scope of this section.
3.2The Conditions That Block Relief
The preceding section concluded that this relief operates where a person holds the statutory participatory status, meets the required demand for distribution, and files within the deadline the action corresponding to the objection together with documents; but that does not amount to the further conclusion that, absent a demand for distribution, everyone is excluded without exception. This question is addressed in the procedure that separately verifies the scope of automatic participation, so as to prevent claims deserving protection from being pushed aside for merely formal omissions.
Article 148 of the Civil Execution Act lists the range of creditors entitled to distribution in four types. Among them, subparagraph 3 provides for "a provisional attachment creditor whose attachment was registered before the first registration of the auction commencement decision," and subparagraph 4 provides for "a creditor holding a mortgage, a right to lease on a deposit basis, or another right to preferential payment that was registered before the first registration of the auction commencement decision and is extinguished by the sale" (Article 148 of the Civil Execution Act). The subjects indicated by this wording are creditors who satisfy the timing of registration and the extinguishment of the right irrespective of any separate application procedure for a demand for distribution, and what is taken as the requirement of conduct is not the application for a demand for distribution but registration before the first registration of the auction commencement decision.
To explain why the distinction must be maintained between the wording of these two types and subparagraph 2, which requires a demand for distribution, the scope of automatic participation here means the range of creditors who participate by satisfying the statutory requirements without a separate demand for distribution. Only by reading the application requirement by the deadline for demand for distribution in subparagraph 2 as not being absorbed into the registration requirements of subparagraphs 3 and 4 does the boundary of the scope of automatic participation remain. Supreme Court Decision 2015Da204762 decided August 19, 2015 confirms that "a maximum amount mortgagee whose right was registered before the registration of the auction commencement decision and is extinguished by the sale is a creditor entitled to distribution as a matter of course even without making a demand for distribution," and adds that a wage claim creditor without a maximum amount mortgage must, just as one who has made a demand for distribution, substantiate that the claim is a wage claim with priority in order to be ranked ahead of prior-ranking maximum amount mortgagees and others (Supreme Court Decision 2015Da204762 decided August 19, 2015). Accordingly, where a creditor for whom a demand for distribution is required missed the deadline, or is deemed to have withdrawn the objection because he failed to submit proof of the filing of the statutory action and the like after the objection, this relief is barred; by contrast, the same blocking conditions do not apply as such to claims falling within the scope of automatic participation.
The counterargument most forcefully advanced is that, if the exception is admitted, the manner of participation within the same distribution practice diverges on the mere fact of registration, making outcomes hard to predict, and that it is unjust for claims deserving protection to be pushed aside for a merely formal omission of a demand for distribution. Without squarely denying the inconvenience and loss that this counterargument identifies, one cannot, on the ground of predictability alone, fold up that scope, given that the provision places subparagraphs 3 and 4 as separate types and the precedent has expressly stated the automatic participation of maximum amount mortgagees. The author responds by preserving this scope and, within it, verifying the requirements.
In the synthetic scene, Creditor A asserts a right to preferential payment, but no record remains as to whether a demand for distribution was made. Among the registry of the right and the deadline for demand for distribution and the application, the distribution schedule, the objection, the filing of the action and the stay documents, on the strength of this scene alone one cannot determine whether this is a provisional attachment creditor whose attachment was registered before the first registration of the auction commencement decision, or a creditor holding a mortgage registered before then and extinguished by the sale, and the existence and timing of the application for a demand for distribution are also unverified. As the precedent preserves, if the maximum amount mortgagee can substantiate that the secured claim is a wage claim with priority, a route of preferential distribution remains for wages for the final three months or claims for retirement pay for the final three years (Supreme Court Decision 2015Da204762 decided August 19, 2015). However, the point that, once confirmed as an automatically participating right registered before the statutory point in time, exclusion is not confirmed merely on account of the omission of a separate demand for distribution is not a fact of this scene but a condition of the determination.
What this section permits is to fix, as blocking conditions of this relief, a creditor's departure from the deadline for demand for distribution that is required and the failure to submit proof and documents after the objection; what it does not permit is to generalize that, on the circumstance of there being no demand for distribution alone, no creditor can fall within the scope of automatic participation. Accordingly, in this matter one must verify Creditor A's route of participation by dividing it between the door of the scope of automatic participation and the door of the demand-for-distribution requirement, and while it remains undetermined which door was used, one must choose neither the confirmation of exclusion nor its neutralization.
3.3The Boundary That Remains When There Is No Data
The preceding section confirmed that a lawful demand for distribution is required even of a wage claim creditor with priority. In that situation, is everyone excluded when there is no demand for distribution, and where is the boundary of matters that cannot be confirmed because the materials for determination are lacking?
Article 148 of the Civil Execution Act sets out four types in the range of creditors entitled to distribution. "A creditor who made a demand for distribution by the deadline for demand for distribution" is one of them (Article 148 of the Civil Execution Act), and mortgages, rights to lease on a deposit basis, and the like registered at the same point in time as "a provisional attachment creditor whose attachment was registered before the first registration of the auction commencement decision" are placed alongside it (Article 148 of the Civil Execution Act). Here the subject is the creditor, the act is a demand for distribution or registration before the statutory point in time, and the conditions are the points in time and requirements stated in each subparagraph.
The reason Article 148 places side by side the person who made a demand or application and the person who completed registration is that their grounds for participation differ. The precedent likewise holds that a maximum amount mortgagee whose right was registered before the registration of the auction commencement decision and is extinguished by the sale is a creditor entitled to distribution as a matter of course even without making a demand for distribution (Supreme Court Decision 2015Da204762 decided August 19, 2015). Therefore, before asking whether a demand was made, one must first verify the scope of automatic participation—that is, the range of creditors who participate by satisfying the statutory requirements without a separate demand for distribution.
The counterargument that this distinction makes distribution practice hard to predict is a substantial one. The loss of a creditor whose name cannot be placed on the list being pushed aside remains, as does the inconvenience that the administrative staff must examine one by one the timing of registration and the nature of the right of each creditor. Yet the author does not accept the result that claims deserving protection are excluded for merely formal omissions, and one cannot write that a separate demand for distribution is mandatory for every creditor.
In the synthetic scene, when and how Creditor A's right was registered is not specified in the materials. The registry that would capture the right, the records of applications before and after the deadline for demand for distribution, the distribution schedule and the objection, and the subsequent filing of the action and the stay documents would be the materials for determination, but what among them remains is also undecided. In this case, because the timing of the demand and submission cannot be fixed, one can neither declare a lack of qualification nor confirm participation.
The conclusion this section permits is that, where the status of automatic participation or the timing of the demand and submission cannot be verified, the matter on which no materials for determination are specified is left undetermined, distinguished from impossibility; and that, once confirmed as an automatically participating right registered before the statutory point in time, exclusion is not confirmed merely on account of the omission of a separate demand for distribution. Conversely, to assert on the record alone that no demand for distribution was made, or to record the lack of materials straightaway as an impossibility of relief, exceeds this scope.
3.4The Records Needed for Determination
The preceding section left the determination undetermined where the status of automatic participation or the timing of the demand and submission could not be verified, and distinguished it from cases in which the relief is barred. What must next be asked, going beyond the boundary at which no determination can be made for want of materials, is the question of what records sustain the determination itself. Creditor A asserts a right to preferential payment, but no record remains as to whether a demand for distribution was made; on what documents should the determination be founded?
As to the question whether everyone is excluded absent a demand for distribution, Article 148 of the Civil Execution Act provides: "The creditors who are to receive distribution of the amount provided in Article 147 (1) shall be the persons provided in the following subparagraphs: 1. A seizing creditor who filed an application for auction by the deadline for demand for distribution; 2. A creditor who made a demand for distribution by the deadline for demand for distribution; 3. A provisional attachment creditor whose attachment was registered before the first registration of the auction commencement decision; 4. A creditor holding a mortgage, a right to lease on a deposit basis, or another right to preferential payment that was registered before the first registration of the auction commencement decision and is extinguished by the sale." This wording lists the subjects by type in each subparagraph, and as the conditions confronting those subjects it takes up the application or demand by the deadline for demand for distribution and the registration before the first registration of the auction commencement decision.
Taking this wording as the standard, this determination is founded on the registry of the right and the deadline for demand for distribution and on the application, the distribution schedule, the objection, and the filing of the action and stay documents. Supreme Court Decision 2015Da204762 decided August 19, 2015 also held: "[2] A maximum amount mortgagee whose maximum amount mortgage was registered before the registration of the auction commencement decision and is extinguished by the sale is a creditor entitled to distribution as a matter of course even without making a demand for distribution, and thus may, even without a demand for distribution, receive distribution according to rank within the maximum amount of the claim recorded in the registry; where a wage claim creditor with a right to preferential payment acquires a maximum amount mortgage over the employer's property with current and future wage or retirement pay claims as the secured claim, even if the creditor did not substantiate by the deadline for demand for distribution that the claim is a wage claim with priority, if before the distribution schedule is finalized the creditor substantiates that the secured claim is a wage claim with a right to preferential payment, then as to claims concerning wages for the final three months or retirement pay for the final three years and the like, the creditor may receive preferential distribution over prior-ranking maximum amount mortgagees and others." The reason one must separate the determination requiring a separate demand for distribution from the determination recognizing the scope of automatic participation is that the former asks whether there was an application or demand, taking the deadline for demand for distribution as the standard, whereas the latter takes as its requirement a fact in the registry, namely registration before the statutory point in time. However, just as in the case of a wage claim creditor with a right to preferential payment who, without any maximum amount mortgage being established, made a demand for distribution by the deadline for demand for distribution, the "wages for the final three months," for which preferential distribution over prior-ranking maximum amount mortgagees and others may be obtained by substantiating that the secured claim under the maximum amount mortgage is a wage claim with priority, means the unpaid portion of wages for which the grounds for payment arose within the three months counted backward from the date of termination of the employment relationship for an employee whose employment relationship had already ended as of the deadline for demand for distribution, and counted backward from the deadline for demand for distribution for an employee whose employment relationship had not yet ended as of that deadline; and the retirement pay for the final three years likewise requires that the grounds for payment of retirement pay arose before the date of the deadline for demand for distribution.
The counterargument that the exception makes distribution practice hard to predict points out that it is unjust for claims deserving protection to be pushed aside for a merely formal omission of a demand for distribution. Distribution practice operates by transferring the documents received before the deadline into the schedule and assigning ranks; if the presence or absence of documents becomes the marker that at once divides participation from non-participation, processing becomes simple and the loss of junior-ranking creditors being pushed aside is easily avoided. The wording above places those registered before the first registration of the auction commencement decision in a separate subparagraph and thereby supplies a ground of participation independent of whether a demand for distribution was made, and the precedent, in the same direction, recognizes the automatic participation in distribution of maximum amount mortgagees and the preferential distribution of wage claim creditors upon substantiation. Closing the door to the exception in order to resolve the practical inconvenience identified by the counterargument is inconsistent with the settled ground.
The fact confirmed in the synthetic scene goes no further than that Creditor A asserts a right to preferential payment but no record remains as to whether a demand for distribution was made. Contrasting this fact with the wording above, the mere assertion of a right to preferential payment does not determine which subparagraph applies, and because the deadline for demand for distribution, the fact of the application, and the timing of registration are unverified, it cannot be determined whether the creditor falls within the scope of automatic participation. Because the year, the amount, and the commencement date are not fixed, neither the range of wages for the retroactive three months nor that of retirement pay for three years can be calculated. Accordingly, this determination is founded on the registry of the right and the deadline for demand for distribution and on the application, the distribution schedule, the objection, and the filing of the action and stay documents, but where those records are absent, the conclusion remains undetermined.
What this section permits is the line of not asserting that everyone is excluded on the sole basis of the presence or absence of a demand for distribution, together with the distinction that, where no record remains, the grounds for the determination are insufficient and it remains undetermined. What this section does not permit is to regard the creditor as having entered the scope of automatic participation on the mere assertion of a right to preferential payment, or to treat the absence of records straightaway as an impossibility of relief. Here the scope of automatic participation means the range of creditors who participate by satisfying the statutory requirements without a separate demand for distribution.
3.5Circumstances That Change the Decision
As stated in the preceding section, this determination rests on the registration of the right and the deadline for demand for distribution, together with the application, distribution table, objection, filing of suit, and stay documents, and remains undetermined in the absence of that record; the present question, however, asks under what conditions the determination itself is overturned, irrespective of that record. If there is no demand for distribution, is everyone excluded? To answer this question, it is necessary first to take up the scene in which it is not recorded whether creditor A, while asserting a right to preferential payment, made a demand for distribution, and to examine what circumstances, if newly confirmed, would halt the determination of exclusion.
The provision in question enumerates the scope of creditors entitled to distribution. Article 148 of the Civil Execution Act provides that "the creditors entitled to receive distribution of the amount prescribed in Article 147 (1) shall be" attaching creditors who filed for auction by the deadline for demand for distribution, creditors who made a demand for distribution by the deadline for demand for distribution, provisional attachment creditors whose attachment was registered before the first registration of the auction commencement decision, and creditors holding mortgages, jeonse rights, or other claims to preferential payment that were registered before the first registration of the auction commencement decision and are extinguished by the sale. This wording divides the subjects into four classes, imposing the deadline for demand for distribution as a requirement upon the first two classes, and the timing of registration and the conditions for extinguishment of the right as requirements upon the latter two. This contrast means that the demand for distribution is not a common gateway for all classes.
Connecting this wording with the conclusion of this section, the omission of a separate demand for distribution and the confirmation of the right to automatic participation lie at different stages of determination. The scope of automatic participation means the scope of participation in accordance with statutory requirements without a separate demand for distribution, and those requirements are the timing of registration and extinguishment by the sale, as separately prescribed by the provision. This is why the basis for the qualification to participate must be determined before asking whether a demand for distribution was made.
The strongest counterargument targets the predictability of distribution practice. It contends that where a claim deserving protection is displaced merely because of the formal omission of a demand for distribution, and where the omission even appears to reverse the order of priority, prediction in distribution practice becomes difficult. This inconvenience and loss cannot be erased. Yet if that counterargument proceeds to write that a separate demand for distribution is essential for all creditors, it collapses the contrast in the provision. The answer given above makes plain the limits of the counterargument. The difficulty of prediction is merely a matter of narrowing the conditions for applying the exception; it cannot serve as grounds for closing the door of the exception itself.
The fact confirmed in the synthetic scene is only that creditor A asserts a right to preferential payment, yet no record remains as to whether a demand for distribution was made. This fact alone cannot determine whether A holds a right to automatic participation registered before the statutory time, nor what the sequence is between the registration of the right and the deadline for demand for distribution. Accordingly, on the scene as it stands, exclusion can neither be confirmed nor halted. If it is confirmed as a right to automatic participation registered before the statutory time, exclusion will not be confirmed on the ground of the omission of a separate demand for distribution alone. So long as the status of automatic participation or the timing of the demand or submission is unconfirmed, this determination remains undetermined.
The conclusion permitted by this section is narrow. It cannot be generalized that everyone is excluded where there is no demand for distribution; it goes no further than to state that where a right to automatic participation registered before the statutory time is confirmed, exclusion is not confirmed on the ground of that omission alone. By contrast, writing that a separate demand for distribution is essential for all creditors is a conclusion this section does not permit.
3.6The Strongest Counterargument and the Answer
It preserves the scope of automatic participation, such as mortgages registered before the statutory time, together with the case law's allowance of proof of wage claims. What remains in this scene is how to answer the counterargument that the exception makes prediction in distribution practice difficult.
The statute governing the scope of creditors entitled to distribution lists four categories. They are attaching creditors who filed for auction by the deadline for demand for distribution, creditors who made a demand for distribution by the same deadline, provisional attachment creditors registered before the first registration of the auction commencement decision, and creditors holding mortgages and other claims to preferential payment that were registered before the same time and are extinguished by the sale (Article 148 of the Civil Execution Act). The first two take an affirmative act, namely an application or a demand, as their condition, while the latter two take registration, a status already in place, as their condition.
This distinction connects with the conclusion of this section. The case law regards a creditor holding a maximum amount mortgage that was registered before the registration of the auction commencement decision and is extinguished by the sale as entitled, without any demand for distribution, to distribution according to rank within the amount of the maximum secured claim entered in the register (Supreme Court Decision 2015Da204762, decided August 19, 2015). The same decision proceeds on the premise that such a creditor is treated in the same manner as a wage claimant with a right to preferential payment, without a maximum amount mortgage, who made a demand for distribution by the deadline for demand for distribution. Accordingly, if the status of registration and the act of demand are bound together on a single axis, the distinction preserved by the case law disappears.
The counterargument that the exception makes prediction in distribution practice difficult targets the loss that the enforcement authority and other creditors face in unexpected delay and uncertainty, because the scope of automatic participation must be assessed case by case. From the standpoint of other creditors, it is unjust that a claim deserving protection is displaced by the formal omission of a demand for distribution, and the answer given above does not erase that disadvantage. Even so, it cannot be written that a separate demand for distribution is essential for all creditors, because the two condition-types found in the statute, as confirmed above, differ from one another. The difficulty of prediction pointed out by the counterargument cannot be used as a reason for denying the existence of the exception.
In the synthetic scene, creditor A merely asserts a right to preferential payment, and there is no record as to whether a demand for distribution was made. This fact alone cannot determine whether the creditor falls inside or outside the scope of automatic participation, and the timing of the registration of the right, the deadline for demand for distribution, and the application, distribution table, objection, filing of suit, and stay documents remain fixed as the subjects to be confirmed. The case law holds that if, before the distribution table is finalized, it is substantiated that the secured claim is a wage claim entitled to priority, preferential payment may be received ahead of senior maximum amount mortgagees and others, while separately specifying the calculation criteria for the wages of the final three months and the retirement pay for the final three years (Supreme Court Decision 2015Da204762, decided August 19, 2015). Accordingly, the absence of the record leaves the matter undetermined, and where it is confirmed as a right to automatic participation registered before the statutory time, exclusion is not confirmed on the ground of the omission of a separate demand for distribution alone.
The conclusion permitted by this section is that, even if the exception makes prediction difficult, a separate demand for distribution cannot be made essential for all creditors. The conclusions not permitted are to confirm the exclusion of creditor A in advance merely because the record is absent, or to assert that the creditor has already received distribution. Effect can be discussed only at the stage where the creditor holds the statutory status of participation and the required demand for distribution and has filed the suit and documents corresponding to the objection within the deadline.
3.7The Link to the Application and the Dispositive Part
After summarizing, in accordance with the conclusion of the preceding section, that a separate demand for distribution cannot be made essential for all creditors, the analysis must now examine how far the door should be left open. To answer this, the concept of scope used in distribution practice must first be refined, and the standard is to be found in the wording of the requirements stated in the original text.
Article 148 of the Civil Execution Act opens by providing that "the creditors entitled to receive distribution of the amount prescribed in Article 147 (1) shall be the persons prescribed in the following subparagraphs," with subparagraphs 1 and 2 listing attaching creditors who filed for auction by the deadline for demand for distribution and creditors who made a demand for distribution, and subparagraph 4 extending to "creditors holding mortgages, registered leasehold rights, or other claims to preferential payment that were registered before the first registration of the auction commencement decision and are extinguished by the sale." This wording divides the basis for the entitlement to distribution between the act of application, namely the demand for distribution, and the registered status of registration.
Accordingly, creditors cannot be distinguished merely by the presence or absence of a demand for distribution. As already stated in the preceding section, a separate demand for distribution cannot be made essential for all creditors. From this follows the conclusion that preserves the scope of automatic participation, such as mortgages registered before the statutory time, together with the case law's allowance of proof of wage claims. That is, the marker of the scope is a registration satisfying the conditions before the first registration of the auction commencement decision, and for a creditor meeting those requirements, exclusion is not confirmed merely because there is no record of application.
Yet it cannot be overlooked that such an exception makes prediction in distribution practice difficult. Supreme Court Decision 2015Da204762, decided August 19, 2015, states that "a creditor holding a maximum amount mortgage that was registered before the registration of the auction commencement decision and is extinguished by the sale is a creditor entitled to distribution of course, even without making a demand for distribution," while, as to the point at which it is substantiated that the secured claim of the maximum amount mortgage is a wage claim entitled to priority, it sets out a specific deadline. Even so, however inconvenient, a separate demand for distribution cannot be made essential for all creditors. The legal pathway is kept open to those who meet the requirements, while late documents or insufficient substantiation are handled as separate matters.
What can be determined in this section is that the mere absence of a record of demand for distribution is insufficient. In this case, one can only list the registration of the right, the deadline for demand for distribution, and the application, distribution table, objection, filing of suit, and stay documents as the records contesting the right; the actual records have not been assembled. In a state where the status of automatic participation or the timing of the demand or submission cannot be confirmed, the condition is set that, if confirmed as a right to automatic participation, exclusion is not confirmed on the ground of the omission of a separate demand for distribution alone. Still, on the facts of the synthetic scene alone, it is not confirmed whether registration preceded the statutory time.
What this section confirms is not that everyone is excluded where there is no demand for distribution, but that it preserves both the scope of automatic participation registered before the statutory time and the case law's allowance of proof of wage claims. Conversely, where a creditor who does need to make a demand for distribution misses the deadline or fails to submit substantiating documents in time, even whether the state of the objection being deemed withdrawn has been reached is not determined here.
3.8The Scope This Section Undertakes
That conclusion is summarized as confirming the principle that a wage claimant with a right to preferential payment nonetheless requires a lawful demand for distribution. The question of this material here is whether, in this scene, entitlement to distribution can be confirmed on the ground of a right to preferential payment, or whether, for want of any record of demand for distribution, everyone is excluded as a matter of course.
To answer this question, the wording of the statutory text is examined first. Article 148 of the Civil Execution Act enumerates the scope of creditors entitled to distribution in four types, which include, along with creditors who made a demand for distribution by the deadline for demand for distribution, provisional attachment creditors registered before the first registration of the auction commencement decision, and creditors holding mortgages, jeonse rights, or other claims to preferential payment that were registered before the first registration of the auction commencement decision and are extinguished by the sale. On the wording of this provision alone, within the same distribution table stand persons required to make a demand for distribution alongside persons entered by separate requirements.
The distinction drawn by this wording touches the conclusion presented above. It is difficult to exclude all creditors merely because there is no record of demand for distribution, because the wording has already divided two paths. One is the path of entering by making a demand for distribution by the deadline; the other is the path of participating, without a separate demand for distribution, by meeting the requirement of registration before the statutory time. This is called the scope of participation in accordance with statutory requirements without a separate demand for distribution, that is, the scope of automatic participation. If the two routes are not distinguished but merged into one, the stages of determination divided by the provision disappear.
Yet this exception faces the counterargument that it makes prediction in distribution practice difficult. The core of the counterargument is that it is unjust for a creditor deserving protection to be displaced by the formal omission of a demand for distribution. A creditor who made a demand for distribution is identified by that record alone, whereas whether the creditor falls within the scope of automatic participation must be confirmed by examining the timing of registration and whether extinguishment has occurred. The answer remains the same. The practical difficulty pointed out by the counterargument is a fact, but it cannot serve as grounds for erasing the fact that the provision provides a separate route of participation.
Returning to the synthetic scene, it is unconfirmed whether creditor A, who asserted a right to preferential payment, has a record of demand for distribution. This fact alone likewise cannot determine whether the creditor falls within the scope of automatic participation. Supreme Court Decision 2015Da204762, decided August 19, 2015, explains that a creditor holding a maximum amount mortgage that was registered before the registration of the auction commencement decision and is extinguished by the sale is a creditor entitled to distribution of course even without making a demand for distribution, and may, without a demand for distribution, receive distribution according to rank within the amount of the maximum secured claim entered in the register; and it holds that, if before the distribution table is finalized it is substantiated that the secured claim of such a maximum amount mortgage is a wage claim entitled to priority, preferential payment may be received ahead of senior maximum amount mortgagees and others. A path remains open that may satisfy the condition that, where it is confirmed as a right to automatic participation registered before the statutory time, exclusion is not confirmed on the ground of the omission of a separate demand for distribution alone. However, since the scene contains no material on the timing of registration or the nature of the claim, this item remains undetermined.
The boundary between the conclusion this section permits and the one it does not lies here. It cannot be confirmed that all creditors, including holders of a right to preferential payment, are excluded merely because there is no record of demand for distribution. Conversely, the mere fact of a demand record does not confirm that the creditor falls within the scope of automatic participation, and neither can this material render the judgment that creditor A in the scene will be able to receive distribution at once.
3.9Application of the Text of the Provisions and the Holdings of Precedents
Whether participation qualifications can be uniformly distinguished by the presence or absence of a demand for distribution alone is the issue remaining from the earlier stage. What must now be asked in this scene is what the wording of the source text requires of the path for participating in auction distribution and maintaining an objection.
The wording in question is that Article 148 of the Civil Execution Act defines creditors entitled to distribution in four scopes. Among them, subparagraph 3 writes of "provisional attachment creditors registered before the first registration of the auction commencement decision," and subparagraph 4 of "creditors holding mortgages, registered leasehold rights, or other claims to preferential payment that were registered before the first registration of the auction commencement decision and are extinguished by the sale." This wording fixes the subject as registered creditors and the conditions as registration before the first registration of the auction commencement decision and extinguishment by the sale, and does not require a separate demand for distribution.
Supreme Court Decision 2015Da204762, decided August 19, 2015, carries the same distinction forward in Summary of Decision [2]. According to that summary, "a creditor holding a maximum amount mortgage that was registered before the registration of the auction commencement decision and is extinguished by the sale is a creditor entitled to distribution of course, even without making a demand for distribution," and where such a creditor holds a maximum amount mortgage with a wage claim as its secured claim, "if, before the distribution table is finalized, it is substantiated that the secured claim is a wage claim to which a right to preferential payment attaches, then, as to claims concerning the wages of the final three months or the retirement pay for the final three years and the like, preferential payment may be received ahead of senior maximum amount mortgagees and others." (Supreme Court Decision 2015Da204762, decided August 19, 2015) Accordingly, when determining on that wording alone, the scope of automatic participation, that is, the scope of participation in accordance with statutory requirements without a separate demand for distribution, widens the route of participation, while the timing and object of substantiation are a separate stage within that route that fixes the rank of preferential payment.
Because of this distinction, prediction in distribution practice becomes difficult. A creditor who misses a formal demand for distribution is displaced; results vary even within the same creditor depending on the timing of substantiation; and those who receive the distribution table first must bear that uncertainty. Acknowledging this inconvenience, nonetheless a separate demand for distribution cannot be made essential for all creditors, for that would be a conclusion erasing the wording by which subparagraphs 3 and 4 of Article 148 make registration itself the requirement.
In the synthetic scene, creditor A merely asserts a right to preferential payment, and no record of demand for distribution remains. Yet since the timing and type of registration of the right are not stated in this scene, it cannot be said as a confirmed fact whether the creditor falls within the scope of automatic participation. In the absence of that confirmation, the determination is left undetermined.
Accordingly, on the wording of the source text alone, registered creditors falling under subparagraphs 3 and 4 cannot be excluded merely for omission of a demand for distribution, while for other creditors the demand for distribution required by subparagraph 2 remains separate. This is the boundary this section permits, and one cannot extend it to the reasons for the judgment or to items not addressed, so as to create new requirements for participation.
3.10Fine Distinctions Within the Stage
우선 임금채권자도 적법한 배당요구가 필요하다는 원칙과 별도로, 예외적 참가 지위의 문을 열어 두어야 한다는 점이 남는다. 기록이 남아 있지 않은 상태에서 곧바로 제외를 확정할 수 있는지, 배당에 참여하고 이의를 유지할 통로 안에서 어느 부분을 따로 나누어 판정할지가 이 물음이다.
법문은 배당받을 채권자의 범위를 네 유형으로 나눈다. 민사집행법 제148조는 배당요구의 종기까지 경매신청을 한 압류채권자와 배당요구의 종기까지 배당요구를 한 채권자를 각각의 유형으로 들고, 배당요구를 한 채권자는 그 종기까지 요구를 마친 사람에 한정한다. 반면 동조는 첫 경매개시결정등기 전에 등기된 가압류채권자, 그리고 같은 시점 전에 등기되고 매각으로 소멸하는 저당권·전세권·그 밖의 우선변제청구권 보유자를 별도의 유형으로 둔다. 이 둘째 묶음이 별도 배당요구 없이 법정 요건에 따라 참가하는 자동 참가 범위이며, 배당요구의 신청 여부와 분리된 참가 근거가 된다.
이 구별을 지키는 이유는 참가 근거가 서로 다르기 때문이다. 앞 유형은 배당요구의 종기까지 요구를 마쳤다는 사실에서 참가 자격이 생기고, 뒤 유형은 첫 경매개시결정등기 전의 등기라는 등기 시점과 매각으로 소멸한다는 권리 성질에서 참가 자격이 생긴다. 대법원 2015. 8. 19. 선고 2015다204762 판결은 경매개시결정등기 전에 등기되고 매각으로 소멸하는 근저당권자를 배당요구 없이도 당연히 배당을 받는 채권자로 보아 등기부상 기재된 채권최고액 범위 내에서 순위에 따른 배당을 받게 한다. 나아가 같은 판례는 근저당권을 취득한 우선변제권 임금채권자가 배당요구 종기까지 우선권 있는 임금채권임을 소명하지 않았어도 배당표가 확정되기 전까지 이를 소명하면 최종 3개월분의 임금이나 최종 3년간의 퇴직금에 관해 우선배당을 받을 수 있다고 본다. 따라서 단계 안의 세부 구분은 작동하는 경우·막히는 경우·미확정인 경우 조건에 한정한다.
그럼에도 예외가 배당 실무의 예측을 어렵게 한다는 반론은 실무상 불편을 지우지 않은 채 남는다. 형식적 배당요구 누락으로 보호받아야 할 채권이 밀리는 것은 부당하다는 점은, 종기를 놓친 채권자가 다른 채권자보다 뒤로 밀려나는 손실을 가리킨다. 그러나 같은 판례가 등록된 근저당권자의 자동 참가와 임금채권자의 소명 가능성을 함께 열어 두었다는 점에서, 모든 채권자에게 별도 배당요구가 필수라고 쓸 수는 없다. 불편이 크더라도 문언에 없는 필수 요건을 만들어 예외의 문을 닫는 방식은 취하지 않는다.
이 장면의 사실로 돌아가면, 채권자 A는 우선변제권을 주장할 뿐이고 배당요구 여부에 관한 기록이 남아 있지 않다. 판정 기록은 권리 등기·배당요구 종기와 신청·배당표·이의·소 제기 및 정지 서류로 정해져 있을 뿐, 자동 참가 지위 또는 요구·제출 시점을 확인할 수 없으면 미확정으로 남는다. 장면만으로는 이 조건의 충족 여부를 가릴 수 없으므로 미확정으로 둔다.
정리하면 이 통로 안에서 허용되는 것은 자동 참가 범위와 배당요구 기반 참가를 나누어 보고, 배당요구 종기와 등기 시점 같은 명시된 조건에 따라 판정하는 것이다. 반대로 허용되지 않는 것은 명시된 조건 밖의 새 단계를 만들어 내거나, 기록 미비를 곧바로 제외 사유로 확정하는 것이다.
3.11Synthesis of Effectiveness, Blockage, and Undetermination
그 결론은 우선 임금채권자도 적법한 배당요구가 필요하다는 것이며, 이는 예외적 참가 지위와 분리된다. 이 상황에서 배당요구가 없으면 누구나 제외되는가? 이 물음에 답하려면 경매 배당에 참여하고 이의를 유지할 통로의 실효·차단·미확정을 어떻게 구별하는지 밝혀야 한다.
민사집행법 제148조는 제147조제1항에 규정한 금액을 배당받을 채권자를 네 가지로 정한다. 조문은 “1. 배당요구의 종기까지 경매신청을 한 압류채권자 2. 배당요구의 종기까지 배당요구를 한 채권자 3. 첫 경매개시결정등기전에 등기된 가압류채권자 4. 저당권·전세권, 그 밖의 우선변제청구권으로서 첫 경매개시결정등기전에 등기되었고 매각으로 소멸하는 것을 가진 채권자”라고 규정한다. 이 문언에서 주체는 배당을 받으려는 채권자이고, 행위는 경매신청·배당요구·등기이며, 조건은 각 호가 정한 시점과 요건을 갖추는 것이다. 앞서 정리한 원칙은 이 문언의 제1호·제2호가 요구하는 참가 요건과 맞닿아 있다.
이 문언과 앞 절의 결론을 연결하면 배당요구가 필요한 채권자와 자동 참가 범위를 나누어야 한다. 제148조 제3호·제4호가 가리키는 가압류채권자·저당권자 등은 법정 시점 전에 등기된 권리자로서 별도 배당요구 없이 참가한다. 이와 달리 제1호·제2호의 채권자는 정해진 시점까지 경매신청 또는 배당요구를 하여 참가 요건을 갖추어야 한다. 대법원 2015. 8. 19. 선고 2015다204762 판결도 “경매개시결정등기 전에 등기되고 매각으로 소멸하는 근저당권자는 배당요구를 하지 않더라도 당연히 배당을 받을 수 있는 채권자”라고 보면서, 이와 분리하여 근저당권을 취득한 임금채권자의 경우에도 소명 시점의 조건에 따라 우선배당을 받을 수 있다고 본다. 두 단계를 구별해야 하는 이유는 참가 지위의 근거가 법정 시점 전의 등기인지, 정해진 시점까지의 신청·요구인지에 따라 판단 기준이 달라지기 때문이다.
예외가 배당 실무의 예측을 어렵게 한다. 형식적 배당요구 누락으로 보호받아야 할 채권이 밀리는 것은 부당하다는 우려가 그것이다. 이 반론이 겨냥하는 손실은 법정 시점 전에 등기된 권리나 우선변제권이 있는 채권을 가진 사람이 단순한 형식 요건의 미비 때문에 배당에서 빠지는 불편이다. 제148조 제3호·제4호가 정한 자동 참가 범위는 별도 배당요구 없이 법정 요건에 따라 참가하는 범위이고, 대법원 2015. 8. 19. 선고 2015다204762 판결도 근저당권자와 임금채권자의 참가·소명 경로를 구분하여 배당요구 없이도 참가하는 범위와 필요한 채권자 사이의 차이를 전제로 한다. 반론이 지적하는 부담은 유지하면서도, 예외의 문을 닫는 방식으로는 답할 수 없다.
이 장면의 쟁점은 우선변제권의 주장 자체가 아니라 자동 참가 지위에 해당하는지, 그리고 필요한 배당요구를 갖추었는지이다. 법정 시점 전에 등기된 저당권 등으로 자동 참가 범위에 들어가는지 확인할 수 있다. 다만 이 장면만으로 배당요구의 신청 시점이나 서류의 제출 시점을 확정할 수 없으므로 그 부분은 미확정으로 남는다.
따라서 배당에 참여하고 이의를 유지할 통로가 열리는 경우는 법정 참가 지위와 필요한 배당요구를 갖추고, 이의 뒤 맞는 소와 서류를 기한 안에 제출한 경우이다. 배당요구가 필요한 채권자가 종기를 놓쳤거나 이의 뒤 법정 소 제기 증명 등을 제출하지 않아 이의가 취하된 것으로 보는 경우에는 그 통로가 막힌다. 자동 참가 지위 또는 요구·제출 시점을 확인할 수 없는 경우는 미확정으로 분리하고, 확인되지 않은 사실로 배제를 확정하지 않는다. 이 구별은 배당 참여와 이의 유지의 통로에 관한 것이며 배당 자체의 실질적 배분이나 매수인의 인수까지 확정하는 것은 아니다.
3.12Conclusion Carried Over to the Next Section
앞 절은 경매 배당에 참여하고 이의를 유지할 통로에 관해 법정 참가 지위와 필요한 배당요구를 갖추고 이의 뒤에 맞는 소와 서류를 기한 안에 제출한 경우에는 작동하고, 배당요구가 필요한 채권자가 종기를 놓쳤거나 이의 뒤 법정 소 제기 증명 등을 제출하지 않아 이의가 취하된 것으로 보는 경우에는 막히며, 자동 참가 지위 또는 요구·제출 시점을 확인할 수 없는 경우에는 미확정으로 남는다고 정리했다. 그 구별을 이어받으면서 배당요구가 없으면 누구나 제외되는가라는 물음이 남는다. 나아가 이 절의 결론에서는 다음 물음에 무엇을 넘기는가를 살핀다.
이 물음에 해당하는 문언은 민사집행법 제148조의 "제147조제1항에 규정한 금액을 배당받을 채권자는 다음 각호에 규정된 사람으로 한다. 1. 배당요구의 종기까지 경매신청을 한 압류채권자 2. 배당요구의 종기까지 배당요구를 한 채권자 3. 첫 경매개시결정등기전에 등기된 가압류채권자 4. 저당권·전세권, 그 밖의 우선변제청구권으로서 첫 경매개시결정등기전에 등기되었고 매각으로 소멸하는 것을 가진 채권자"(민사집행법 제148조)이다. 이 문언은 배당받을 채권자의 범위를 각 호의 주체로 정한다. 각 호는 시점과 등기라는 조건을 달리 붙이므로, 제2호의 배당요구를 다른 호의 등기 요건과 같은 것으로 읽을 수 없다.
해당 문언의 제3호와 제4호는 첫 경매개시결정등기전에 등기된 가압류채권자와 같은 시점에 등기된 저당권·전세권 등을 배당요구 없이도 배당받을 주체로 둔다. 이 범위를 자동 참가 범위, 곧 별도 배당요구 없이 법정 요건에 따라 참가하는 범위로 부르면, 그 둘은 참가를 가능하게 하는 근거가 서로 다르다. 대법원 2015. 8. 19. 선고 2015다204762 판결은 같은 방향에서 경매개시결정등기 전에 등기되고 매각으로 소멸하는 근저당권자는 배당요구를 하지 않더라도 당연히 배당을 받을 수 있는 채권자로서 배당요구 없이도 등기부상 기재된 채권최고액의 범위 내에서 순위에 따른 배당을 받을 수 있다고 본다(대법원 2015. 8. 19. 선고 2015다204762 판결). 그리고 그 판례는 우선변제권이 있는 임금채권자가 현재 및 장래의 임금이나 퇴직금 채권을 피담보채권으로 하여 사용자의 재산에 관한 근저당권을 취득한 경우 배당요구의 종기까지 우선권 있는 임금채권임을 소명하지 않았다고 하더라도 배당표가 확정되기 전까지 피담보채권이 우선변제권이 있는 임금채권임을 소명하면 최종 3개월분의 임금이나 최종 3년간의 퇴직금 등에 관한 채권에 대하여는 선순위 근저당권자 등보다 우선배당을 받을 수 있다고 덧붙인다(대법원 2015. 8. 19. 선고 2015다204762 판결). 따라서 법정 시점 전에 등기된 저당권 등의 자동 참가 범위와 근저당권을 취득한 임금채권자의 증명 가능성을 보존한다. 이것이 이 절의 결론이다.
이 결론이 불안하게 보이는 까닭은 예외가 배당 실무의 예측을 어렵게 한다는 점이다. 어떤 채권이 제2호의 배당요구만으로 들어오고 어떤 채권이 등기라는 다른 경로로 들어오는지를 표로 옮기기 전에는 배당표의 순위가 확정되지 않고, 등기부와 소명 자료를 따로 확인해야 한다. 형식적 배당요구 누락으로 보호받아야 할 채권이 밀리는 것은 부당하다는 걱정도 같은 자리에서 나온다. 문언이 각 호의 주체를 나누어 둔 이상 배당요구를 전 호의 공통 요건으로 올리면, 제3호와 제4호가 이미 정한 등기 요건을 빈 것으로 만든다. 예측의 어려움과 누락에 따른 손실을 줄이는 일은 이 문을 닫는 대신 어떤 경로로 들어온 채권인지 밝히는 쪽에 남는다.
이 장면만으로는 채권자 A의 권리가 경매개시결정등기 전에 등기되었는지, 매각으로 소멸하는 성격인지를 확인할 수 없다. 그러므로 이 장면이 어느 호에 드는지 확정되지 않았고, 앞 절의 미확정이라는 범위가 그대로 남는다. 자동 참가 지위 또는 요구·제출 시점을 확인할 수 없는 경우에는 미확정으로 남기며, 미확정을 곧바로 구제 불능으로 옮기지 않는다. 여기서 확인할 기록은 권리 등기·배당요구 종기와 신청·배당표·이의·소 제기 및 정지 서류이다.
이 절이 허용하는 결론은 좁다. 배당요구가 없으면 누구나 제외되는가에 대해, 법정 시점 전에 등기된 저당권 등 자동 참가 범위와 근저당권을 취득한 임금채권자의 증명 가능성을 보존한다. 이와 함께 확정하지 않는 범위도 분명하다. 모든 채권자에게 별도 배당요구가 필수라고 쓰지 않으며, 배당요구 여부만으로 제외를 확정하지도 않고, 자동 참가 범위의 요건이 충족된다고 해서 그 채권의 금액과 순위가 자동으로 정해진다고도 말하지 않는다. 미확인 항목은 그대로 두고 조건부 구별만 남긴다. 이 절의 결론이 다음 물음에 넘기는 것은 배당에서의 지위가 매수인의 부담과 같은지 여부다. 배당과 매수인의 인수는 같은가?