가압류권자와 신소유자의 채권자들과의 배당관계

Abstract

If a third party acquires immovables between the provisional seizure and the seizure, the auction procedure, especially the distribution of the amount should become complicated. Because immovables provisionally seized are not only the liability property for the person holding the provisional seizure, but also the liability property for the creditors of the new acquisitor of the immovables. Precedents say that the person holding the provisional seizure, when a third party acquires immovables between the provisional seizure and the seizure, no matter who, the person holding the provisional seizure or a creditor of the new acquisitor of the immovables, requests the auction, be distributed as the first priority about his or her credit. The purpose of provisional seizure is to take the authority of dispose from the owner of the immovables in order to preserve a compulsory execution against the movables or immovables in respect of a monetary claim or a claim convertible into the money, until a creditor get a executive title and could request auction. Giving the first priority about his or her credit to such a provisional seizure is getting out the range of the purpose of the provisional seizure. It should be unfair. The procedures requested by a creditor of the new acquisitor of the immovables and by the person holding the provisional seizure is the same one procedure. In this one auction procedure, the court shall make a distribution to the creditor and he person holding the provisional seizure in the priority under the Civil Act, the Commercial Act, and other Acts.