Summary
The type of suit varies depending on the opposing party to the objection and the enforcement title, and submission of the documents of proof within the statutory period is also required.
6.1The Standard by Which the Path Opens
If a statement of opposition does not lead to a lawsuit that the court will process, the door to distribution closes again. The preceding section concluded that the manner and scope of objection differ between the debtor and the creditor, and that the creditor must stay within the scope of his own interest. Then the present question is whether an objection raised at the distribution date keeps the dispute alive, and what the criterion is for opening the channel of this remedy. An objection is an act indicating dissatisfaction with the distribution chart, but it does not by itself leave a settled dispute. If the dissatisfaction left by the words of opposition does not lead to a lawsuit that the court will examine, the distribution procedure proceeds as before and the door closes again. Accordingly, the acts required after the objection and the documents to be filed must be counted separately.
This wording is found in Article 154 of the Civil Execution Act. Paragraph (1) provides that a debtor who has objected to a creditor who does not have a copy of an enforceable title of execution (excluding a provisional attachment creditor), and a creditor who has objected to another creditor, shall file an action for objection to distribution; and paragraph (2) provides that a debtor who has objected to a creditor who has a copy of an enforceable title of execution shall file an action for objection to the enforcement of a claim (Article 154 of the Civil Execution Act). This wording divides the type of action to be filed according to who the counterparty to the objection is and whether that counterparty has a copy of an enforceable title of execution. The subjects spoken of here are the debtor and creditor who raised the objection, the act is the filing of the prescribed action, and the condition is the counterparty to the objection and whether that counterparty holds a title of execution.
Paragraph (3) provides that if a document proving the fact that the action has been filed is not submitted within the period, the objection is deemed withdrawn (Article 154 of the Civil Execution Act). This wording requires the filing of the action and the submission of the document proving it side by side, and, for the action under paragraph (2), requires as well the submission of a copy of the stay-of-execution ruling (Article 154 of the Civil Execution Act). Accordingly, the entrance to this remedy opens not upon the statement of objection but upon completing the filing of the prescribed action and the submission of documents after the objection, that is, upon completing the subsequent procedure for objection to distribution. Even a creditor who raised the objection keeps the dispute alive only after first obtaining statutory participation status and making the required demand for distribution. This determination treats the statement at the date and the requirements of the subsequent lawsuit as separate stages.
The strongest counterargument points to the difficulty of preparing the action and stay documents within a short period, and further, to the injustice of a claim that ought to be protected being pushed aside for want of a formal demand for distribution. The practical burden is heavy: within the narrow period of one week from the distribution date, one must prepare the complaint and the documents of proof and, if necessary, a copy of the stay-of-execution ruling; and if a claim that is substantively entitled to priority is pushed aside in the distribution for failure to satisfy the form of the documents, the value that ought to be protected is lost. This loss and inconvenience are clear. Even so, one cannot write that the requirements of the subsequent action and filing have been met merely by a statement of objection at the date. The type of action prescribed by the wording and the submission of the documents of proof are requirements separate from the statement, and if that distinction is collapsed, no ground remains for applying the deemed withdrawal prescribed in paragraph (3).
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. Measured against the foregoing conditions, whether statutory participation status and the required demand for distribution have been obtained must first be established; and since there is no such record, it cannot be categorically stated that the entrance to this procedure has opened. So long as the automatic participation status or the time of the demand and filing cannot be confirmed, this item remains undetermined. However, if it is confirmed as an automatic participation right registered before the statutory time, exclusion is not established merely for want of a separate demand for distribution.
What this section allows is the judgment that, where the prescribed action has been filed according to the counterparty to the objection and the title of execution and the documents of proof have been submitted within the statutory period, and where one can defend the right of the chosen action by having the performance, parties, and conditions specified in the claim statement, the entrance to this remedy opens. What it does not allow is the conclusion that the requirements of filing the action and submitting documents are met merely because words of opposition were left at the date; this also does not accord with the deemed withdrawal prescribed by the wording. One cannot write that the dispute is kept alive even where a creditor required to make a demand for distribution missed the deadline or is deemed to have withdrawn the objection for failure to submit the documents of proof and the stay documents. Items left with insufficient materials are undetermined and are not moved directly to unavailability of relief.
6.2The Conditions That Block Relief
The manner and scope of objection differ between the debtor and the creditor, and the creditor must stay within the scope of his own interest. In this scene, the present questions are whether an objection raised at the distribution date keeps the dispute alive, and what the conditions are that block relief. Whether the statement of objection keeps the dispute alive by itself, or whether subsequent procedure is separately required, is decided here.
The provision on the action for objection to distribution divides the type of action to be filed according to the counterparty to the objection and the title of execution that counterparty holds. A debtor who has objected to a creditor, among creditors who do not have a copy of an enforceable title of execution, excluding a provisional attachment creditor, and a creditor who has objected to another creditor, shall file an action for objection to distribution; and a debtor who has objected to a creditor who has a copy of an enforceable title of execution shall file an action for objection to the enforcement of a claim (Article 154 of the Civil Execution Act). The subjects prescribed by this wording are the debtor and creditor who raised the objection, the act is the filing of the action matching the counterparty, and the condition is whether the counterparty creditor holds a title of execution.
The submission of documents of proof within the statutory period is a stage of judgment distinct from the choice of the type of action prescribed above. Where the creditor or debtor who raised the objection fails to submit to the execution court, within one week from the distribution date, a document proving the fact that the action under paragraph (1) has been filed, or fails to submit a document proving the fact that the action under paragraph (2) has been filed together with a copy of the stay-of-execution ruling for that action, the objection is deemed withdrawn (Article 154 of the Civil Execution Act). Only when these conditions are in place does the channel of relief open. If any one of them is not met, then in a case where a creditor required to make a demand for distribution missed the deadline or is deemed to have withdrawn the objection for failure to make the subsequent submission, the door closes.
The difficulty of preparing the action and stay documents within a short period does not direct one away from the inconvenience left by this determination. The plea that it is unjust for a claim that ought to be protected to be pushed aside for want of a formal demand for distribution aims in the same direction. The two observations point to the loss that the shortness of the period and the burden of documents overwhelm substantive rights. The statement shows only the fact that an objection was indicated; it cannot substitute for the type of action and the filing documents that the law requires.
The fact confirmed in the synthetic scene is that Creditor A asserts a right to preferential payment, yet no record of an application for a demand for distribution remains. Measured against the statutory conditions, the status and requirements of a creditor who must complete a demand for distribution are at issue, and whether documents proving the filing of the action within one week after the objection were submitted is also unconfirmed. The time of the application and the scope of the objection, unrecorded, cannot be established from this scene alone and remain undetermined.
The permissible conclusion is that the objection is maintained only where the statutory requirements are in place; the interpretation that the statement of objection at the distribution date itself substitutes for the subsequent action and the filing of documents is not permissible. The type of action divides according to the counterparty to the objection and the title of execution, and the conditions, including the submission of documents of proof within the period, are bound together as a single channel. Next, whether all performance can be compelled in the same manner is not the answer to this question and passes to another discussion.
6.3The Boundary That Remains When There Is No Data
On the premise that the manner and scope of objection differ between the debtor and the creditor and that the creditor must stay within the scope of his own interest, Creditor A asserts a right to preferential payment, but no record remains as to whether a demand for distribution was made. What is to be asked in this scene is whether an objection raised at the distribution date keeps the dispute alive, and where the boundary lies that cannot be established for want of materials. The so-called subsequent procedure for objection to distribution, that is, the filing of the prescribed action and the submission of documents after the objection, lies at the center of the issue.
The relevant wording in Article 154 of the Civil Execution Act divides the type of lawsuit required according to the counterparty to the objection and the type of title of execution. Under that wording, a debtor who has objected to a creditor who does not have a copy of an enforceable title of execution (excluding a provisional attachment creditor), and a creditor who has objected to another creditor, shall file an action for objection to distribution; and a debtor who has objected to a creditor who has a copy of an enforceable title of execution shall file an action for objection to the enforcement of a claim. Here, the name and path of the action divide according to who the subject of the objection is and whether the opposing creditor has a copy of the title of execution. The same Article, paragraph (3), states that a document proving the fact that the action under paragraph (1) has been filed within one week from the distribution date, or a document proving the fact that the action under paragraph (2) has been filed together with a copy of the stay-of-execution ruling for that action, shall be submitted to the execution court.
That wording requires the submission of documents of proof within the period as a requirement separate from the filing of the action, and if no submission is made, the objection is deemed withdrawn. This point reveals why the statement of objection at the distribution date and the subsequent procedure must be distinguished. The former is a statement clarifying the object and scope of the dispute; the latter is the prescribed measure for leading that dispute to a lawsuit that the court will adopt and examine. In accordance with this distinction, where the automatic participation status or the time of the demand and filing cannot be confirmed, matters for which the judgment materials are not specified are left undetermined, distinguished from impossibility. The criterion of not converting the absence of materials into a determination that the right does not exist lies here.
The strongest counterargument starts from the difficulty of preparing the action and stay documents within a short period. In an actual situation, within a week after the objection at the date, the creditor must ascertain the type of the counterparty's title of execution, file the action fitting that type, and prepare the documents proving that fact and, if necessary, a copy of the stay-of-execution ruling. That a claim which ought to be protected is pushed aside for want of a formal demand for distribution is unjust expresses that inconvenience in the language of value. Securing in advance the lawsuit and filing documents that the court will process is not the function of a statement of objection, and the pressure and inconvenience that the counterargument points out remain without changing the conclusion.
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. On the facts of this scene alone, one cannot specify whether he falls within automatic participation status—that is, the status of participating without a separate demand for distribution—or when the demand for distribution was submitted. Accordingly, this item remains undetermined rather than impossible. The condition that, if confirmed as an automatic participation right registered before the statutory time, exclusion is not established merely for want of a separate demand for distribution, is only a determination condition to be applied if confirmed, not a fact established in the present scene.
The conclusion permitted in this section stays within the range of leaving matters that cannot be established for want of materials undetermined, and of treating the requirements of the statement of objection and the subsequent filing of the action and documents as separate stages. Conversely, a conclusion denying the qualification for participation or the right to preferential payment itself merely because the automatic participation status and the time of the demand and filing are unconfirmed is not permissible, nor is a conclusion that the subsequent requirements are met by the statement of objection at the date alone.
6.4The Records Needed for Determination
Thus, in a place where there is only an assertion and the record is empty, it remains a question whether the dispute is kept alive by the mere fact that an objection was raised at the distribution date. If the manner and scope of the objection are already fixed, what remains is by what means one confirms whether that objection has moved to the stage the court will process. The question is by what record one confirms whether the procedure after the objection has been completed. This question asks not about the existence of the objection but about the existence of the procedure after the objection.
The wording corresponding to this question is Article 154 of the Civil Execution Act. That wording divides the type of action according to whether the counterparty to the objection has a copy of the title of execution. Paragraph (3) provides that where a document proving the fact that the action under paragraph (1) has been filed is not submitted within one week from the distribution date, or where a document proving the fact that the action under paragraph (2) has been filed together with a copy of the stay-of-execution ruling for that action is not submitted, the objection is deemed withdrawn (Article 154 of the Civil Execution Act). What is handled here is the condition of the type of action and the submission of documents of proof; other issues prescribed by the provision are not included in this question.
This wording treats the statement of objection at the date and the completion of the subsequent procedure as separate matters. The former is the act of raising the dispute at the distribution date; the latter is the filing of the prescribed action and the submission of documents after the objection. The type of action divides according to the counterparty to the objection and the title of execution, and the filing requirements divide again according to the type of that action. The reason the statement of objection at the date and the subsequent filing of the action and submission of documents must be distinguished is that the statement alone produces no record stating that the prescribed action and documents have been filed. The stage determination is made only on the prescribed records. Using only the materials recorded in the registration of the right, the deadline and application for a demand for distribution, the distribution chart, the objection, and the filing of the action and stay documents, one checks which side the counterparty to the objection and the title of execution fall on and whether the filing requirements have been met. Missing records are not filled in by conjecture.
The strongest counterargument lies in the difficulty of preparing the action and stay documents within a short period. It also points out that it is unjust for a claim that ought to be protected to be pushed aside for want of a formal demand for distribution. The loss aimed at by this counterargument is the inconvenience and value in the fact that a claim which ought to be protected substantively is pushed aside in the distribution because of the short period of the procedure and the difficulty of preparing documents. Yet one cannot write that the requirements of the subsequent action and filing have been met by the statement of objection at the date alone. Without erasing the disadvantage the counterargument points out, the type of action and the submission of documents of proof prescribed in Article 154 are taken as the criterion for the stage determination. Even if the presence of a statement of objection can be separately confirmed, that alone is not written as satisfying the subsequent requirements.
The fact confirmed in the synthetic scene is that Creditor A asserts a right to preferential payment, yet no record remains as to whether a demand for distribution was made. Checked against the prescribed record index, no record corresponding to an application for a demand for distribution is confirmed among the registration of the right, the deadline and application for a demand for distribution, the distribution chart, the objection, and the filing of the action and stay documents. Whether he is a creditor required to make a demand for distribution cannot be established on this scene alone, and which side the counterparty to the objection and the title of execution fall on is not determined by the record either. The automatic participation status and the time of the demand and filing, which cannot be determined from the scene, remain undetermined. Accordingly, whether the objection is deemed withdrawn in this scene, and whether a separate demand for distribution is unnecessary, are left open until more of the prescribed records are filled in.
What this section allows is the conclusion that stages are determined on the prescribed records, and items for which the record is empty are left undetermined. What it does not allow is the conclusion that the requirements of the subsequent action and filing are met by the statement of objection at the date alone. The case in which the objection is deemed withdrawn is limited to the case where documents proving the filing of the statutory action and the like have not been submitted; where the automatic participation status or the time of the demand and filing cannot be confirmed, the matter is undetermined and not immediately an unavailability of relief. At what point the filing of the prescribed action and the submission of documents after the objection were completed can only be established once more of the record is confirmed.
6.5Circumstances That Change the Decision
This question opens from the point that, if a statement of objection does not lead to a lawsuit handled by the court, the door to distribution closes again. As carried over from the previous stage, the manner and scope of objection differ between debtor and creditor, and the creditor must stay within the range of its own interest. What now remains is the question whether an objection made at the distribution date keeps the dispute alive, and what change overturns the determination of the preceding stage. In this scene, the question is whether the dispute continues on the statement of objection alone, or whether a separate follow-up procedure is necessary.
According to the relevant text, "a debtor who has objected to a creditor not holding a copy of an enforceable enforcement title (excluding a provisional attachment creditor), and a creditor who has objected to another creditor, shall file an action for objection to distribution" (Article 154 of the Civil Execution Act). This text first distinguishes the party raising the objection from its counterpart. A debtor who has objected to a creditor holding a copy of an enforceable enforcement title "shall file an objection to the enforcement of a claim lawsuit" (Article 154 of the Civil Execution Act). The type of lawsuit varies according to who raised the objection and toward which party it was raised.
The same Article then makes clear the condition for submitting documents. "Where the objecting creditor or debtor fails to submit to the execution court, within one week from the distribution date, a document proving the fact that it has filed the lawsuit under paragraph (1), or fails to submit a document proving the fact that it has filed the lawsuit under paragraph (2) together with a copy of the ruling on the stay of execution pertaining to that lawsuit, the objection shall be deemed withdrawn" (Article 154 of the Civil Execution Act). This text places the filing of a lawsuit and the submission of proof documents as separate steps. The distinction of the party raising the objection and its scope, seen in the preceding section, here leads to the choice of the type of lawsuit, and that choice must in turn lead to the submission of proof documents within the statutory period. These two together are called the follow-up procedure for an objection to distribution—that is, the prescribed filing of a lawsuit and submission of documents after the objection. If the prescribed filing of a lawsuit and submission of documents are omitted, the existing statement of objection alone does not keep the dispute alive.
The difficulty of preparing the appropriate lawsuit and stay documents within this short period is a practical inconvenience. A creditor seeking to protect its own claim may find it unjust to be displaced merely on account of a formal omission of a demand for distribution. What the text requires are the separate acts of filing a lawsuit and submitting proof documents, and the statement of objection is merely their beginning. However, even if no separate demand for distribution was made, if this is confirmed as an automatic participation right registered before the statutory point in time, and if the change is confirmed that exclusion is not finalized merely on account of that omission, the earlier determination is altered.
In the synthetic scene, Creditor A asserts a right to preferential payment, but no record of a demand for distribution remains. From this fact alone, the deadline for the demand for distribution, the time of application, and whether automatic participation status was registered cannot be determined. If the assumed contrary fact is confirmed—that is, the condition that, where it is confirmed as an automatic participation right registered before the statutory point in time, exclusion is not finalized merely on account of the omission of a separate demand for distribution—then the earlier determination of blocking and effectiveness is discarded and the determination is redone from that stage. Yet from the scene alone one cannot say whether that condition, that if it is confirmed as an automatic participation right registered before the statutory point in time exclusion is not finalized merely on account of the omission of a separate demand for distribution, has been satisfied. Accordingly, the creditor's automatic participation status and the timing of the demand and submission remain undetermined.
What this section permits is the narrow conclusion that, even after a statement of objection, the dispute is maintained only when the prescribed lawsuit and submission of documents are in place. An interpretation that treats the statement of objection alone as satisfying the follow-up requirements is not permitted by this section. Conversely, if an automatic participation right registered before the statutory point in time is confirmed, the determination is overturned to the effect that exclusion is not finalized merely on account of the omission of a demand for distribution.
6.6The Strongest Counterargument and the Answer
Does an objection raised at the distribution date keep the dispute alive? Under the premise that the manner and scope of objection differ between debtor and creditor and that the creditor must stay within the range of its own interest, the present question lies in the difficulty of preparing the appropriate lawsuit and stay documents within a short period after the objection. Even so, whether one may write that the statement of objection at the date alone satisfies the requirements of the follow-up lawsuit and submission is the issue at this stage.
Paragraph (3) thereof provides that "where the objecting creditor or debtor fails to submit to the execution court, within one week from the distribution date, a document proving the fact that it has filed the lawsuit under paragraph (1), or fails to submit a document proving the fact that it has filed the lawsuit under paragraph (2) together with a copy of the ruling on the stay of execution pertaining to that lawsuit, the objection shall be deemed withdrawn" (Article 154 of the Civil Execution Act). Here the party is the objecting creditor or debtor, the act is the filing of the prescribed lawsuit and the submission of a document proving that fact, and the condition is compliance with the period running from the distribution date. This question is not directed to other issues of the Article but is confined to the type of lawsuit and the submission of proof documents.
What links this text to the conclusion of this section is the distinction between the statement of objection and the follow-up procedure. The follow-up procedure for an objection to distribution means the prescribed filing of a lawsuit and submission of documents after the objection. That the type of lawsuit varies according to the counterpart of the objection and the enforcement title, and that submission of proof documents within the statutory period is also required, is precisely the ground for this distinction. A statement of objection made at the date goes no further than indicating the direction in which the court will judge the handling of the distribution; only when it proceeds to the lawsuit the court will handle and to the submission of a document proving the filing thereof is the prescribed procedure completed. Accordingly, the fact that paragraph (3) provides that failure to submit proof documents is deemed a withdrawal of the objection means that the requirements of filing the lawsuit and submitting documents constitute a step separate from the statement, and hence one cannot write that the statement of objection at the date alone satisfies the requirements of the follow-up lawsuit and submission.
The claim is that it is unjust for a claim deserving protection to be displaced through a formal omission of a demand for distribution. The loss this counterargument targets is the disadvantage of a creditor asserting a right to preferential payment being excluded from distribution for failure to have its documents in order, and that inconvenience is concentrated in the short time required for drafting and service of documents; its value lies in the proposition that the threshold of the procedure should not stand in the way of realizing substantive rights. Yet the answer above stands as it is. Since the submission requirements set by the Article are not met by the statement alone, one cannot write that difficulty of preparation substitutes for those requirements. Even without erasing the loss and inconvenience pointed out by the counterargument, the determination that submission of proof documents is also required is maintained.
Contrasting this fact with the foregoing condition, the assertion of a right to preferential payment cannot substitute for the type of lawsuit determined by the counterpart of the objection and the enforcement title, nor for the requirement of submitting proof documents within the statutory period. Since no record remains as to whether a demand for distribution was made, that status and the time of application cannot be determined from this scene alone. If it is confirmed as an automatic participation right registered before the statutory point in time, exclusion is then not finalized merely on account of the omission of a separate demand for distribution, and the conclusion changes. Accordingly, the range in which the automatic participation status or the timing of the demand and submission cannot be confirmed remains undetermined.
The conclusion this section permits is narrow. Where one selects the prescribed type of lawsuit according to the counterpart of the objection and the enforcement title, and within the statutory period submits a document proving the filing thereof or, in the case of an enforcement title, submits the stay documents together, one can escape the route by which the objection is deemed withdrawn. The conclusion that is not permitted is equally clear. To write that the mere fact of having voiced an objection at the date satisfies the requirements of the follow-up lawsuit and submission, and to substitute the absence of a record of a demand for distribution for satisfaction of the submission requirement, is a judgment outside this text. That route operates only where one holds the statutory participation status and the necessary demand for distribution and, after the objection, submits the appropriate lawsuit and documents within the time limit; what thereby opens is not the accomplishment of actual payment, but the state of being able to participate in the distribution by maintaining the objection.
6.7The Link to the Application and the Dispositive Part
This single sentence condenses the problem now at hand. At the distribution date, Creditor A objected to the share allotted to it in the distribution table while asserting that it held a right to preferential payment, and the premise organized in the preceding section is carried over, namely that the statement of objection at the date alone cannot be written up as satisfying the requirements of the follow-up lawsuit and submission. What, then, is further required for A's objection to be maintained as an actual dispute? This question asks after the conditions of the follow-up procedure for an objection to distribution—that is, the prescribed filing of a lawsuit and submission of documents after the objection.
Article 154 of the Civil Execution Act respectively prescribes the lawsuit to be filed according to the counterpart of the objection. On the face of the text, the type of lawsuit diverges according to whether the counterpart receiving the objection holds a copy of the enforcement title and whether the party raising the objection is the debtor or the creditor.
Article 154, paragraph (3) of the same Act provides that, where the objecting creditor or debtor fails to submit to the execution court, within one week from the distribution date, a document proving the fact that it has filed the lawsuit under paragraph (1), or fails to submit a document proving the fact that it has filed the lawsuit under paragraph (2) together with a copy of the ruling on the stay of execution pertaining to that lawsuit, the objection shall be deemed withdrawn (Article 154 of the Civil Execution Act). What this text requires is not the statement at the date but the filing of the prescribed lawsuit and the submission of a document proving that fact and, in the case of a lawsuit under paragraph (2), a copy of the ruling on the stay of execution together with them. The period is within one week from the distribution date, and the legal consequence is that the objection is deemed withdrawn.
Against this, the counterargument that it is difficult to prepare the appropriate lawsuit and stay documents within a short period aims at substantive loss. Faced with the burden of selecting the type of lawsuit, obtaining even a stay ruling, and submitting documents within one week, the value is set that it is unjust for a claim deserving protection to be displaced through a formal omission of a demand for distribution. Even so, one cannot write that the statement of objection substitutes for the submission requirements set by law. For the statement of objection is merely the act that begins the dispute, and the requirements that maintain the dispute are the filing of the lawsuit and the submission of documents separately prescribed by Article 154.
Returning to the synthetic scene, Creditor A asserts that it holds a right to preferential payment, but no record remains as to whether it made a demand for distribution. The assertion of a right to preferential payment alone cannot be regarded as satisfying the filing of a lawsuit and submission of documents required by Article 154, and it is also undetermined who the counterpart of the objection is and whether that counterpart holds a copy of the enforcement title. Since the registration supporting the right and the deadline for the demand for distribution, and the records of the application, the distribution table, the objection, the filing of the lawsuit, and the stay documents, are not confirmed, the automatic participation status or the timing of the demand and submission remains undetermined.
In sum, the conclusion this section permits is that, even if a statement of objection is made at the distribution date, the dispute is maintained only when, according to the counterpart of the objection and whether that counterpart holds an enforcement title, one files the prescribed lawsuit among the action for objection to distribution and the objection to the enforcement of a claim lawsuit, and puts in place the proof documents whose submission is required within one week from the distribution date and, in the case of a lawsuit under paragraph (2), a copy of the ruling on the stay of execution as well. What it does not permit is the interpretation that the statement alone satisfies the requirements of the follow-up lawsuit and submission.
6.8The Scope This Section Undertakes
This is examined under the premise that the manner and scope of objection differ between debtor and creditor and that the creditor must stay within the range of its own interest. The question handled in this section is narrow. It is, first, in what cases a creditor asserting a right to preferential payment nonetheless receives nothing from the distribution if it does not follow the prescribed follow-up procedure after the objection, and, second, how far the range handled by this section extends.
The text governing the follow-up procedure for an objection to distribution is found in Article 154 of the Civil Execution Act. Here the party is the objecting debtor and creditor, the act is the filing of the prescribed lawsuit, and the condition is that the counterpart of the objection is a creditor not holding a copy of an enforceable enforcement title or is another creditor.
Paragraph (2) provides that a debtor who has objected to a creditor holding a copy of an enforceable enforcement title shall file an objection to the enforcement of a claim lawsuit, and the type of lawsuit to be filed diverges according to who the counterpart of the objection is and what status that counterpart holds (Article 154 of the Civil Execution Act). As prescribed by this statutory text, the choice of the type of lawsuit and the submission of proof documents within the statutory period are separate steps, and this section does not write that the statement of objection at the date substitutes for the filing of the lawsuit and the submission of documents thereafter.
The counterargument most strongly aimed here concerns the temporal pressure of the procedure. It is practically difficult, within the short period after the distribution date, to select the lawsuit appropriate to the counterpart of the objection and the enforcement title and, where necessary, to prepare even a copy of the ruling on the stay of execution pertaining to that lawsuit. It also appears unjust for a claim that should in substance be protected to be displaced on account of a formal omission of a demand for distribution. Yet even without erasing the unfavorable aspects of this counterargument, since the text of Article 154 makes the type of lawsuit and the submission of documents requirements, the conclusion of this section does not change.
The facts confirmed in this scene are only that assertion and the absence of records; beyond this, what lawsuit A actually filed and when, and when it submitted the proof documents, are undetermined. Accordingly, whether the filing of the lawsuit and the submission of documents required by Article 154 took place cannot be determined from this scene alone, and remains unverified.
That is the conclusion this section permits. The assertion of a right to preferential payment does not substitute for the status of participating in the distribution or the requirements of a demand, and the statement of objection at the distribution date does not replace the filing of the prescribed lawsuit and the submission of documents thereafter. Conversely, the conclusion this section does not permit is that, on the single circumstance that the objection was made in words, the dispute is maintained and the distribution is forthwith secured. That door may stand open, but it is maintained only when the appropriate lawsuit and proof documents are in place within the statutory period.
6.9Application of the Text of the Provisions and the Holdings of Precedents
Accepting the premise that the manner and scope of objection differ between the debtor and the creditor, and that the creditor must stay within the range of its own interest, the inquiry now turns to what wording opens the channel through which that objection may be supported. A mere statement of objection does not lead the court to continue examining the dispute, so a precise standard is needed for distinguishing the type of lawsuit that must follow and the documents to be submitted. This question addresses the procedural threshold that a creditor faces when it seeks to maintain its objection within the scope of its own interest.
The source provision in question, Article 154 of the Civil Execution Act, distinguishes the action to be brought according to the party against whom the objection is raised and the presence or absence of an enforceable title. As the wording states, a debtor who has objected to a creditor that does not possess an authenticated copy of an enforceable title, and a creditor who has objected to another creditor, shall bring an action for objection to distribution, while a debtor who has objected to a creditor possessing an authenticated copy of an enforceable title shall bring an action for objection to the enforcement of a claim (Civil Execution Act Article 154). Here the actors are the debtor who has objected and the creditor who has objected, the act is the bringing of the specified type of action, and the condition turns on whether the opposing creditor possesses an authenticated copy of a title. The debtor and creditor who are to bring an action for objection to distribution, and the debtor who is to bring an action for objection to the enforcement of a claim, are each placed on a separate channel.
On the basis of this wording, one must distinguish that the statement of objection and the subsequent filing of an action are requirements at different stages. If the former is the act of giving notice of a dispute, the latter is the act of converting that notice into a matter for the court to examine, and between the two lie the choice of the prescribed action and the submission of documents. Article 154 of the Civil Execution Act provides that where the creditor or debtor who has objected fails to submit a document proving the fact that the action was filed within one week from the date of distribution, or fails to submit a document proving the fact that an action for objection to the enforcement of a claim was filed together with an authenticated copy of a ruling staying execution in that action, the objection is deemed withdrawn (Civil Execution Act Article 154). Accordingly, if the wording of the source provision alone is taken as the basis for judging the channel for participating in auction distribution and maintaining an objection, the type of action and the submission of proving documents remain separate requirements.
The strongest counterargument is directed at the difficulty of preparing the appropriate action and stay documents within a short period. The demand that it is unjust for a claim deserving protection to be pushed aside owing to an omission of a formal demand for distribution points to the loss and inconvenience that a person who overlooked the form of the documents should not thereby forfeit a substantive priority. What this answer preserves is the distinction separating the objection from the subsequent procedure, and it does not erase the difficulty of preparation noted by the counterargument, leaving in place the disadvantage created by the formality of the procedure. The creditor asserts its objection within the range of its own interest, but to maintain that assertion it must separately follow the channel of the prescribed action and documents.
From this scene alone it has not been determined whether a demand for distribution was actually made, or when that application occurred, and accordingly one cannot judge whether a creditor required to make a demand for distribution missed the deadline. The state in which the automatic-participation status or the timing of the demand and submission cannot be confirmed remains undetermined.
The conclusion permitted by this section extends only to the point that, within the wording of the source provision, the type of action differs according to the party against whom the objection is raised and the title, and that submission of proving documents within the statutory period is required as well. A statement of objection alone must not be treated as satisfying the requirements of the subsequent action and submission, nor does it mean that the results of actual payment or recovery are confirmed. Conversely, on the basis of undetermined records, one must not conclude at once that the creditor is excluded.
6.10Fine Distinctions Within the Stage
This is a statement that reveals why an objection that does not lead to litigation cannot prevent the distribution table from becoming final. In other words, one must ask whether a statement of opposition made at the hearing preserves one's position on the distribution table as such, or whether the prescribed procedure must be followed separately afterwards.
In answering this question, the wording of Article 154 of the Civil Execution Act must first be read. That provision distinguishes the action to be brought according to the type of title held by the creditor opposing the objection. As to a debtor's objection to a creditor that does not possess an authenticated copy of an enforceable title, and a creditor's objection to another creditor, an action for objection to distribution shall be brought; as to a debtor's objection to a creditor that does possess an authenticated copy of an enforceable title, an action for objection to the enforcement of a claim shall be brought. The same provision requires that a document proving the fact that the action was filed within one week from the date of distribution, and in the latter case also an authenticated copy of a ruling staying execution in that action, be submitted to the execution court.
This wording separates the type of action and the submission of documents within the period as distinct stages of determination. The former turns on who the objecting party and the opposing party are and whether the opposing party holds a title; the latter is a requirement for making the court confirm the existence of the ensuing lawsuit. Accordingly, one cannot treat the fact that objection was expressed in words at the hearing and the fact that the requirements of the subsequent lawsuit were met as a single bundle and conclude that the dispute is automatically maintained. That the type of action is specified means that the duty to bring that action rests on the one who objected, so that only upon completing the submission of proving documents does the ensuing procedure present itself as regular.
The strongest counterargument aims at the practical burden of preparing the appropriate complaint and stay documents within the short period. It is pointed out that, within a period of one week, confirming the type of title held by the opposing party, choosing the appropriate action, and assembling the necessary proving documents together with an authenticated copy of a ruling staying execution is realistically far from easy. The value that it is unjust to produce the result of pushing aside a claim deserving protection owing to an omission of a formal demand for distribution is also carried by this counterargument. While leaving the disadvantage noted by the counterargument untouched, dismantling the distinction prescribed by the wording of Article 154 and thereby retreating the requirements for maintaining the dispute exceeds the scope of this question.
From this fact alone, one cannot judge whether A had the statutory participation status and made the required demand for distribution. An assertion of a right to preferential payment is merely an assertion as to the content of the right and does not substitute for records concerning the deadline and application for a demand for distribution. Whether A was a creditor required to make a demand for distribution, or a person registered as holding a right falling under the automatic-participation status, and at what point the demand and submission were made, remain undetermined. Nor does this scene furnish grounds for applying in reverse the condition that, if confirmed as an automatically participating right registered before the statutory point in time, exclusion is not established by the mere omission of a separate demand for distribution.
In sum, the detailed distinctions are confined to the foregoing conditions. If the statutory participation status and the required demand for distribution are in place and the appropriate action and documents are submitted within the period after the objection, the channel opens; if a creditor required to make a demand for distribution missed the deadline, or if, after the objection, proof of filing the statutory action and the like are not submitted so that the objection is deemed withdrawn, the channel is blocked; and if the automatic-participation status or the timing of the demand and submission cannot be confirmed, the matter is undetermined. No new stage is added to judge this.
6.11Synthesis of Effectiveness, Blockage, and Undetermination
The conclusion up to the preceding stage is carried over in a single sentence: the manner and scope of objection differ between the debtor and the creditor, and the creditor must stay within the range of its own interest. In the same distribution procedure, voicing an objection and causing the court to examine that objection in a separate lawsuit are distinct tasks, and if the later stage does not follow, the earlier words end without altering the distribution table. What is asked here is the distinction among whether the channel for participating in distribution and maintaining the objection actually opens, whether it is blocked, or whether it is open or closed cannot yet be determined.
The type of action the law requires is divided according to who the party against whom the objection is raised is, and whether that party possesses an authenticated copy of an enforceable title.
The filing of the action demanded by this wording, the submission of proving documents concerning the action under paragraph (1), and the submission of proving documents and an authenticated copy of a ruling staying execution concerning the action under paragraph (2), are subsequent tasks separate from the statement of objection. The reason these two must not be conflated is that, whereas the earlier objection is an act that fixes the object and direction of the dispute, the later filing and submission are formal requirements that hold that dispute in place as a case pending before the court. On the wording, the effect of deeming the objection withdrawn follows when the latter is not fulfilled, and one cannot say that the mere fact of having stated the objection at the hearing prevented that effect.
The counterargument gains force from the difficulty of preparing the appropriate action and stay documents within the short period. Discerning within a week whether the opposing party holds a title, bringing the appropriate type of action, and assembling proving documents or an authenticated copy of a ruling staying execution is easily missed if document preparation is delayed, and the reproach remains that it is unjust for a claim deserving protection to be pushed aside owing to an omission of a formal demand for distribution. Yet despite this reproach, the settled answer does not change. The circumstance that document preparation was difficult cannot serve as grounds for substituting the statement made at the hearing for the application of the wording that deems the objection withdrawn.
Placing this scene against the foregoing conditions, it must be confirmed both that creditor A is a creditor who objected to another creditor and that A submitted to the execution court within one week a document proving the fact that an action for objection to distribution was filed after the objection, for the opening to be established. Conversely, if a creditor required to make a demand for distribution missed that deadline, or if proof documents of the subsequent filing of the action were not submitted so that the objection must be deemed withdrawn, the channel is blocked. However, whether the automatic-participation status exists, and at what point the demand or submission occurred, cannot be confirmed from the records alone, so this scene alone does not permit a determination.
Accordingly, the channel for participation in distribution and maintenance of the dispute opens only where the objection is held in place as a lawsuit for the court to handle, and that channel is blocked where a creditor required to make a demand for distribution missed the deadline, or where, failing to submit within the period the proving documents of the filing of the statutory action, the objection is deemed withdrawn. Where the automatic-participation status and the timing of the demand for distribution and document submission cannot be confirmed, the matter is left undetermined, and the statement of objection at the hearing is not elevated and recorded as satisfaction of the subsequent requirements.
6.12이 권의 결론과 남는 물음
Under the premise that the manner and scope of objection differ for the debtor and the creditor, the question is whether a statement of objection made at the date of distribution maintains the dispute as such. In the scene where creditor A asserts a right to preferential payment, this section examines only what must follow the objection and how.
Article 154 of the Civil Execution Act separately provides for the action to be brought according to the party against whom the objection is raised and the presence or absence of a title. Paragraph (3) of the same Article provides that where, within one week from the date of distribution, the debtor or creditor who has objected fails to submit to the execution court a document proving the fact that the relevant action was filed, and, in the case of an action for objection to the enforcement of a claim, an authenticated copy of a ruling staying execution in that action, the objection is deemed withdrawn (Civil Execution Act Article 154). Here the actors are the debtor or creditor who has objected, the act is the filing of the action and the submission of its proving documents, and the condition is submission within the prescribed period.
Connecting this wording reveals that the stage of stating the objection and the stage of the subsequent action are distinct. The statement of objection is the act of declaring at the hearing the intention to dispute the distribution on the distribution table, whereas the subsequent procedure for an objection to distribution refers to the filing of the prescribed action and the submission of documents after the objection. While the former remains at the statement made on the date of distribution, the latter is the work of moving that statement into a lawsuit for the court to examine and supporting it with submitted documents. The author does not write these two stages as the same, and one cannot determine that, by the statement at the hearing alone, the requirements of filing the action and submitting the proving documents were fulfilled together.
The difficulty of preparing the appropriate action and stay documents within the short period is a real burden, and the protest that it is unjust for a claim deserving protection to be pushed aside owing to an omission of a formal demand for distribution cannot be disregarded. The type of action and the documents to be submitted prescribed by the provision are procedural requirements added to the content of the objection, and it also stipulates the statutory effect that where those requirements are not met the objection is deemed withdrawn. The circumstance that the burden is heavy does not erase the distinction fixed by the wording, and the author maintains this answer as it stands.
What is confirmed in the synthetic scene is the fact that creditor A asserts a right to preferential payment, yet no records remain concerning whether a demand for distribution was made. From these records alone, it does not appear whether A applied for a demand for distribution or complied with the deadline, whether the creditor against whom the objection was raised holds a title of execution, or whether proving documents of the filing of the action or an authenticated copy of a ruling staying execution were submitted within one week after the objection. Accordingly, this section cannot determine to which action A's objection led, or which documents were submitted within the period. Even in the case of confirming the condition that, if confirmed as an automatically participating right registered before the statutory point in time, exclusion is not established by the mere omission of a separate demand for distribution, that confirmation cannot in turn determine the performance of the filing and document submission following the objection.
The conclusion permitted by this section is the distinction that the action to be brought is divided according to the party against whom the objection is raised and the title, and that the objection is maintained by submitting the proving documents and, where necessary, an authenticated copy of a ruling staying execution within the prescribed period. Since the effect of withdrawal of the objection is placed within the same wording, a conclusion reading the statement of objection at the hearing as converting it into satisfaction of the subsequent procedure is not permitted. Can every performance be compelled in the same manner?
Statutes referred to
Questions left open
- What method can give substantive effect to the notice of demand for distribution?
- Who should bear the procedural costs of a small preferential claim?
- What remedy is available when no amount remains after execution costs and senior encumbrances?