외국선박 가압류 채권자의 배당 요구 적법성 - 대법원 2011. 9. 8. 선고 2009다49896호 판결 -

Abstract

This judgment is about legality of the demand for distribution by a creditor who has affected a provisional seizure of foreign vessel. The content is, to take part in the distribution of a preceding auction procedure, whether the provisional seizure creditor needs to fulfill all requisite for commencement of an execution by Civil Execution Act or he can just claim his right in a proceeding auction procedure without a separate provisional seizure execution when the vessel, the object of provisional seizure, is already under the disposition of observation and preservation and the execution officer has received the vessel’s nationality certificate. However, there is no difference regarding procedures between the provisional seizure execution and the seizure execution to foreign vessels, and it is hard to say that a provisional seizure creditor’s right is specially protected or the right of interested parties such like owners and debtors, is violated even though the provisional seizure creditor takes part in the distribution of the vessel. Instead, there is an advantage that the participation of provisional seizure creditors in the distribution can make easy to ascertain the claims related with the foreign vessel which provide limited information about credits and debts. Besides that, it is practically impossible to make overseas service or notification to debtors before the completion period of demand after all crews send back to their countries, and it would be inconsistent with the law of equity to make the provisional seizure creditor take all disadvantage of failing provisional seizure execution because the execution of provisional seizure is under the responsibility of the court rather than the provisional seizure creditors. Considering all the reasons above, I think the following provisional seizure is in effect without separate steps when the ruling of the following provisional seizure issues and the judgment is insufficient to protect the right of provisional seizure creditors of foreign vessels. I hope the court would be more forward -looking and aggressive for the protection of the provisional seizure creditors of foreign vessels in similar cases.