회생철차개시가 매각이 완료된 부동산 집행절차에 미치는 효력－서울고등법원 2017. 10. 31. 선고 2017나 005981 판결을 중심으로－

In a judicial auction, the title of a seized property is transferred to the purchaser without ownership registration and liens or mortgage rights terminate at the moment the price of the property is payed off to the court. On the other hand, when the Bankruptcy Court renders an order to commence a business rehabilitation case, judicial actions to collect debts from the debtor are automatically halted, and then vacated retrospectively in the end as a result of the court’s confirmation of rehabilitation plan for the debtor. However, this article suggests that the proceedings for distribution of the proceeds to the creditors should not be stayed or cancelled, if the judicial sale was completed before the issuance of court order to commence a rehabilitation process. In this case, the Seoul High Court reasoned and concluded as follows. (ⅰ) Even after the defendant’s mortgage right on the plaintiff’s auctioned property is terminated upon the purchaser making the payment for it, the mortgage right still exists on the proceeds of the sale, because the proceeds are the same in nature as the auctioned property. (ⅱ) At the time when the rehabilitation proceedings began, the sale had been completed, but distribution of proceeds to the creditors was underway. In such a case, only the sale and transfer of title remain effective, while the procedure for distributing proceeds of the sale is to be stayed and cancelled. (ⅲ) Because defendant’s claim was satisfied with the proceeds of the sale in the cancelled distribution procedure, the defendant was unjustly enriched at the expense of plaintiff’s bankruptcy estate. So, the plaintiff has a prima facie right to restitution. This article is critical of the decision of the Seoul High Court. In this case the procedure for distribution of proceeds was not to be stayed or vacated, because the auction was completed at the moment when the rehabilitation case for the plaintiff commenced. Moreover, the defendant was neither a pre-petition lien holder nor a creditor of the plaintiff, because the plaintiff was a material guarantor and the mortgage right was non-existent at that time. Therefore, the defendant rightfully received the share in the sale, which is not an unjust enrichment. The Seoul High Court should have denied the plaintiff’s claim.