Law Firm Sejong, Attorneys Kim Yoon-hee, and Cho Jae-hee, Counsel for the defendant-appellant

Law Firm Jungwon, Attorney Kang Young-gu, Counsel for defendant-appellant

2. C.

3. D;

4. E.

5. F;

Defendant 2 through 5, Law Firm Sejong, Attorney Jeon Ha-han, Counsel for the defendant-appellant-appellee)

6. G.

Law Firm Lee & Lee, Attorney Kim In-ju

2. With respect to the case of H real estate compulsory auction by the Daegu District Court, the portion of dividends, with the exception of the portion of KRW 3,000,000,000 against the Defendants relating to each real estate listed in the separate sheet Nos. 1 and (2) and machinery and apparatus listed in paragraph (3), out of the distribution schedule prepared by the said court on May 5, 2017 and 26, shall be revoked, and the dividends shall be distributed in proportion to the order of claims

3. On May 26, 2017, Daegu District Court’s H Real Estate Compulsory Auction case: (a) KRW 94,861,149 of the dividend amount of Defendant B-2 related to each real estate listed in attached Table 7, 8, and 9 of the above court’s attached Table Nos. 7, 861,149; (b) KRW 57,908,904; (c) KRW 115,214,432 of the dividend amount of Defendant G-2; (d) KRW 72,505,634 of the dividend amount of Defendant G; and (e) KRW 185,145,077 of the Plaintiff’s second-order dividend amount was corrected to KRW 264,806,930; and (e) each of the claims against Defendant C, D, E, and F was dismissed.

5. Of the costs of lawsuit, 1/5 of the portion arising between the Plaintiff and the Defendant B shall be borne by the Plaintiff; the remainder shall be borne by the Plaintiff; the Plaintiff and the part arising between the Plaintiff, Defendant C, D, E, and F shall be borne by the Plaintiff; and 4/5 of the portion arising between the Plaintiff and the Defendant G shall be borne by the Plaintiff

Daegu District Court H Real Estate Compulsory Auction case prepared by the said court on May 26, 2017

1. The defendants' first-order dividend amount of KRW 3,00,000,000,000 for each real estate listed in paragraphs (1), (2) and (3) of the attached list, and the second-order dividend amount of KRW 46,151,30,00 for the defendant and B, as KRW 14,904,795, and the second-order dividend amount of KRW 67,46,532 for the plaintiff's second-order dividend amount of KRW 7,560,646,670 for the plaintiff's second-order dividend amount of KRW 7,560,646,670 for each real estate listed in paragraphs (1) and (2) of the attached list, and KRW 6,00,000 for the defendant's second-order dividend amount of KRW 119,775,631 won for the plaintiff's second-order dividend amount of KRW 157,842,04.

2. 64,569,682 won for Defendant B’s third-class distribution of each real estate listed in [Attachment List Nos. 4, 5, and 6] and KRW 78,423,669 for Defendant G’s third-class distribution amount, KRW 252,047,525 won for the Plaintiff’s third-class distribution amount, KRW 264,686,472;

3. The amount of dividend of Defendant B’s second-class dividends of each real estate listed in attached Tables 7, 8, and 9, the amount of dividend of KRW 94,861,149, the amount of dividend of Defendant G’s second-class dividends of KRW 115,214,432, the amount of dividend of KRW 185,145,07, the amount of dividend of the Plaintiff’s second-class dividends of KRW 264,806,930.

Correction. Each correction.

【Preliminary Claim】

Of the distribution schedule prepared by the above court on May 5, 2017, 26 with respect to the compulsory auction case of the order of Paragraph (3) and the Daegu District Court H Real Estate District Court

1. The defendants' first-order dividends of 3,00,000,000 won for each real estate listed in paragraphs (1) and (2) of the attached Table Nos. 1,50,000,000,000, and the second-order dividends of 46,151,306 won for the defendant B's second-order dividends of 14,904,795 won, the second-order dividends of 67,46,532 won for the plaintiff's second-order dividends of 7,560,646,670 won, the second-order dividends of 6,00,000,000 won for each real estate listed in paragraphs (1) and (2) of the attached Table No. 1,646,670 won, and the plaintiff's second-order dividends of 119,775,631 won for the plaintiff's second-order dividends of 157,842,04 won;

2. Defendant B’s third-order distribution amounting to KRW 64,569,682 won, KRW 57,881,752 won, Defendant G’s third-order distribution amounting to KRW 78,423,669 won, KRW 252,652 won, Plaintiff’s third-order distribution amounting to KRW 252,047,525 won, and KRW 264,686,47,525 won, respectively.

A. The plaintiff and the defendant's right to collateral security, claims, etc.

1) On January 13, 1998, I, RJ., Defendant B, and G completed the registration of the establishment of a neighboring mortgage amount of KRW 3,00,000,000 on the ground of a contract signed by January 12, 1998 with respect to each of the real estate listed in the attached list 1, 2, and 3 (hereinafter referred to as "distribution goods") owned by K Co., Ltd. (hereinafter referred to as "K") and machinery and apparatus listed in the attached list 1, 2, 1998 (hereinafter referred to as "the dividend goods 2").

2) On April 29, 2004, Defendant B filed an order for payment (Tgu District Court 2004 tea 12918) with K to pay the guaranteed debt, and on April 29, 2004, Defendant B received a payment order with the purport that “K shall pay to Defendant B the money calculated at the rate of 2.5% per month from January 21, 2004 to the date of complete payment, and 3,223,000 won for demand (hereinafter “the payment order as of April 29, 2004”), and the above payment order was finalized as of May 22, 2004.

3) Defendant B filed a lawsuit against L and M with the Daegu District Court 2003Gahap11022. On June 9, 2004, as L and M were fully admitted Defendant B’s claims, “L. M jointly and severally agreed to Defendant B, with 5% per annum from March 1, 2003 to August 18, 2003, and with 20% per annum from the next day to the date of full payment (hereinafter “the report of recognition of this case”).

4) Defendant B completed the registration of the establishment of a neighboring mortgage amounting to KRW 6,00,000,000 on the ground of a contract establishing a contract dated November 12, 2009 with respect to the distribution of dividends owned by K on November 1, 2009.

5) Defendant G filed an order for payment seeking the payment of agreed money, etc. against L and M ( Daegu District Court 2012j232) with the Daegu District Court on January 17, 2012, Defendant G received an order for payment (hereinafter referred to as "order for payment as of January 17, 2012") stating that "L and M shall jointly and severally be paid to Defendant G 7,567,277,370 won and 6,672,842,278 won per annum from January 6, 2012 to the date of full payment, and KRW 3,140,720 won per annum from January 6, 2012." The above order for payment was finalized as of February 9, 2012.

6) On February 18, 2016, the Plaintiff filed a lawsuit against K, L, and M with the Daegu District Court 2013Gahap204250, and received a judgment from the Daegu District Court 11,936,930,930,181 won per annum for the Plaintiff, M shall be jointly and severally with N, Ltd., L, and K within the scope of each property inherited from the network P, with respect to each of the said money, KRW 5,968,465,09 of the said money and each of the said money shall be 21% per annum from February 7, 1998 to March 17, 2014, until September 20, 2015; and KRW 15% per annum from the following day to September 30, 2015."

C. Procedure for compulsory auction

1) On May 30, 2016, the Plaintiff (hereinafter referred to as the “instant auction procedure”) was ordered to commence compulsory auction proceedings (hereinafter referred to as “instant auction proceedings”) with respect to the instant real estate listed in [Attachment List 4, 5, and 6 (hereinafter referred to as “distribution 3”) listed in [Attachment List 4, 5, and 6 (hereinafter referred to as “distribution 4”) owned by K, according to the Daegu District Court Decision 2013Gahap204250, on which a provisional execution order was issued on May 30, 2016.

2) In the instant auction procedure, Defendant B demanded distribution based on the payment order dated April 29, 2004 and the letter of recognition and recognition of the instant case. Defendant G made a demand for distribution based on the payment order dated January 17, 2012.

3) At the instant auction procedure, KRW 1, and KRW 2,000 were sold to Q on April 21, 2017 as a lump sum for KRW 9,275,00,00, and KRW 3, and KRW 4 were sold to R on April 4, 2017 as a lump sum for KRW 905,200,00. The preparation of a distribution schedule and the objection to distribution were made.

1) In the instant auction procedure on May 5, 2017, the Daegu District Court: (a) determined the sales price of KRW 10,180,200,00 for the sales price of KRW 10,180,20,000 for the goods distributed (= KRW 9,275,00,000 + KRW 905,200 + KRW 905,200); (b) determined the sales price of KRW 10,134,87,043 as the actual amount of dividends, after deducting KRW 46,268,147 for the enforcement cost; and (c) prepared a distribution schedule for the content of dividends distributed to the Plaintiff and the Defendants as shown in the table (hereinafter “instant distribution schedule”).

A person shall be appointed.

A person shall be appointed.

2) On May 26, 2017, the Plaintiff appeared on the date of distribution of the instant auction procedure, and raised an objection against the Defendants, such as the entries in the purport of the claim, and filed the instant lawsuit on June 1, 2017.

(d) Inheritance relationship;

1) The net0 died on March 22, 2004; on April 27, 2010, the deceased P, a spouse of the network0, respectively; L, a child, and M have succeeded to the property rights and obligations of the network0 on a final basis by 1/2 shares; and 3, 4 and M are real estate inherited from L, and M are real estate inherited from each network.

2) L and M reported each qualified acceptance of the deceased-gu Family Court No. 2004 Ma1165, 2004 Ma 1164 with respect to the deceased P’s inherited property. As to the deceased P’s inherited property, the Daegu Family Court reported each qualified acceptance and accepted each of such reports under No. 2010 Ma 1592 and 1593 on the deceased P’s inherited property.

3) The deceased J died on April 19, 2015, and Defendant C, D, E, and F jointly succeeded to the property rights and obligations of the deceased J.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, 13 evidence, Eul evidence 2, 3, 4, Eul evidence 3, Eul evidence 1 to 4 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Main Safety Determination

A. Determination on Defendant B’s main defense

1) Defendant B’s main safety defense

The Plaintiff asserts to the effect that, in the event that an inheritor makes a qualified acceptance, only the inheritance obligee who held a claim against the inheritee can perform compulsory execution on the inherited property, and only the inherent obligee who held a claim against the inheritor may perform compulsory execution on the inherited property. The Defendant B, based on the inherent claim against L, made a demand for distribution on the inherited dividends against the third party, and thus, Defendant B’s dividend amount on this portion should be deleted.

However, since the Plaintiff also enforced compulsory execution against Defendant B, a inherited property, on the basis of L’s inherent right, the amount of dividends for Defendant B’s dividends is not increased, even if the dividend amount for Defendant B’s dividends is unlawful. Therefore, the Plaintiff’s claim against Defendant B, among the instant lawsuit, seeking correction of the dividend amount for Defendant B’s dividends for Defendant B’s dividends for lack of legal interest.

2) Determination

A lawsuit of demurrer against distribution is sought for the modification of a distribution schedule or the preparation of a new distribution schedule in order to reduce the amount of dividends to be distributed to himself/herself by a person entered in the distribution schedule (see Supreme Court Decision 2011Da48902, Sept. 29, 2011). In a lawsuit of demurrer against distribution, the benefits asserted by the plaintiff as a lawsuit in the lawsuit of demurrer against distribution are the benefits that the plaintiff is entitled to receive by the modification of the distribution schedule or the preparation of a new distribution schedule if the plaintiff's objection is accepted. The plaintiff's assertion that the defendant B demanded a distribution of the dividends against the three inherited property based on his/her own claim against L, so the amount of dividends is deleted and the plaintiff's amount of dividends is increased. Accordingly, the plaintiff's assertion that the plaintiff's dividends are likely to increase. Therefore, there is no benefit in the lawsuit.

B. Ex officio determination

1) The plaintiff's assertion

The plaintiff asserts that the amount of dividends against the defendant Eul out of the amount of dividends against the defendant Eul, 64,569,682, and 78,423,669 won for the dividend against the defendant G, 252,047,525 won for the plaintiff, 264,686,472 won for the dividend against the plaintiff, and 94,861,149 won for the dividend against the defendant Eul out of the amount of dividends concerning the 4th distribution for the dividend, and 115,214,432 won for the dividend against the defendant G, and 185,145,07 won for the plaintiff, 264,806,930 won for the dividend against the plaintiff.

2) Determination

ex officio, a creditor who appeared on the date of distribution may raise an objection against another creditor's claim within the scope related to his/her own interests (see Article 151 (3) of the Civil Execution Act). If a creditor raises an objection to a lawsuit of demurrer against distribution, his/her dividends shall be increased. Even if the dividends to other creditors are illegal, if the amount to be distributed to him/her is not increased due to such illegal cause, such cause shall not be deemed the ground for a lawsuit of demurrer against distribution (see, e.g., Supreme Court Decisions 92Da50270, Jan. 25, 1994; 2010Da39215, Oct. 14, 201; 2010Da39215, Oct. 14, 201; 205; 3067, Nov. 67, 2017; 797; -697, Nov. 27, 2017; -697.

3. Judgment on the merits

A. The Defendants’ dividend amount on the 1 and 2 dividend goods

1) The plaintiff's assertion

I, the deceased J, and B shared the right to collateral security with a maximum debt amount of KRW 3,00,000,000 with respect to the dividend amount of KRW 1 and 2. As to the right to collateral security in the name of I, the judgment ordering the implementation of the procedure for registration of cancellation on the ground that the right to collateral security does not exist or that the right to collateral security falls under the most recent claim is null and void. Since the right to collateral security in the name of J has already expired due to the completion of the extinctive prescription, the portion equivalent to one-fourths of I and G among the above right to collateral security is null and void, and only one-fourths of each of the Defendants B and G are valid. Accordingly, the Defendants’ dividend amount of KRW 3,00,000,000 against the dividend amount of KRW 1,50,000 shall be reduced to KRW 1,00,000 corresponding to the shares of Defendant B and G.

2) Determination

A) In the event that multiple creditors have created a single collateral on certain real estate in the same opportunity and completed the same, the right to collateral security shall be secured by all quasi-owners by combining the amount of the secured claim, and the ratio of completion of the right to collateral security shall not be determined before the secured claim is finalized, but when the amount of the secured claim becomes final and conclusive, the right to completion of the collateral security shall be paid at the ratio of the amount of the secured claim to each of the final and conclusive claims (see, e.g., Supreme Court Decisions 2006Da31887, Mar. 13, 2008); and even if the distribution to the defendant is illegal, if the amount to be distributed to the plaintiff is not increased due to the increase in the amount of the secured claim, such cause may not be deemed grounds for filing a lawsuit of demurrer against distribution (see, e.g., Supreme Court Decisions 92Da50270, Jan. 25, 199; 2010Da3215, Oct. 14, 2015).

B) In light of the above legal principles, comprehensively taking account of the overall purport of evidence Nos. 1, 6, 13, and Eul evidence Nos. 4 as to the instant case, it is acknowledged that the amount of each secured claim of Defendant B and G concerning the right to collateral security of KRW 3,000,000,000 with respect to the right to collateral security of KRW 1,200 on January 13, 1998, exceeds the maximum debt amount of KRW 3,00,000,00. Thus, even if the part of the right to collateral security of KRW 3,00,000 with respect to the right to collateral security of KRW 1,20,000 is null and void, Defendant B and Eul should complete the right to collateral security according to their respective secured claims, and the above secured debt amount is reduced to KRW 1,50,000,000,000 with respect to the right to collateral security of KRW 1,500,000,00.

B. As to the dividend amount of Defendant B related to the 1 and 2 dividend goods

1) The dividend amount of KRW 6,000,000,000 for 1 dividend goods

A) Determination on the cause of the claim

As to dividends 1, Defendant B and K, which were concluded on November 12, 2009, constitutes a fraudulent act, and thus, the contract to establish a mortgage should be revoked. As to the restitution of the original state, Defendant B was sentenced to the Supreme Court Decision 2013Da204250 Decided November 12, 2009 (Seoul District Court Decision 2013Ga2050 Decided November 12, 2009) that Defendant B is obligated to perform the procedure to register the cancellation of the registration of the establishment of a mortgage over the place of distribution of the dividends 1 (Seoul District Court Decision 2013Da204250 Decided November 12, 209). Unless there is no dispute between the Plaintiff and the Defendant B, the amount of dividends 6,00,000,000 won of the Defendant B

B) Determination as to Defendant B’s assertion

(1) Defendant B asserted that, in the instant auction procedure on April 29, 2004, the amount of KRW 44,977,337,41 of the claim against K was legally distributed, Defendant B’s dividend amount of KRW 6,000,000,000 as to the dividend goods 1 should be distributed in proportion to the amount of the claim against the Plaintiff and Defendant B.

(2) On the other hand, in a lawsuit of demurrer against a distribution, the Defendant may raise all arguments that the Defendant could dismiss the Plaintiff’s claim by means of defense. As such, the Defendant may assert that the amount of the Plaintiff raised an objection against a distribution ought to be distributed to other claims excluded from the distribution. This also applies even if the Defendant did not raise an objection against the distribution based on other claims. Therefore, even if the obligor transferred a claim against the third obligor to a specific creditor, but the judgment revoking the claim was finalized on the ground that the claim was transferred to the third obligor, but the obligee was subject to the attachment and collection order against the pertinent claim, in a case where the obligee was subject to the attachment and collection order against the pertinent claim, it is possible to receive the distribution in the distribution procedure following the mixed deposit by the third obligor as the transferee of the relevant claim, which is the beneficiary of the fraudulent act, but it is possible to receive the distribution in the capacity of the obligee subject to the seizure and collection order (see Supreme Court Decision 2011Da107818, Mar

(3) In light of the above legal principles, since Defendant B demanded a distribution of the claim against Defendant B during the instant auction procedure on April 29, 2004, based on the payment order issued by April 29, 2004, as seen earlier, Defendant B had the right to receive a distribution as not only the status of a person having a collateral security but also the right to receive a distribution based on the payment order, in the distribution procedure of the instant auction procedure, as well as the status of a person having a right to receive a distribution based on the payment order, the contract between Defendant B and K on November 12, 2009 should be cancelled as a fraudulent act, and thus the mortgage contract concluded on November 12, 2009 should be cancelled as of November 12, 2009, and thus, even if the status as a "mortgage mortgagee" is not recognized, Defendant B should have the grounds for the correction of the distribution order between the Plaintiff and the above person having the right to demand a distribution.

2) The dividend amount of KRW 46,151,306 on dividends 1 and 2

A) The plaintiff's assertion

(1) In the instant auction procedure, Defendant B demanded the claim amounting to approximately KRW 45 billion on the basis of the payment order dated April 29, 2004 against Defendant B, a joint guarantor, to whom the Defendant B received on April 29, 2004. However, the amount of the claim pursuant to the recognition agreement of this case against L and M, a principal debtor, is merely about KRW 15 billion, and thus, the amount of the claim amount pursuant to Defendant B’s joint and several liability obligations against the Defendant B should be reduced to KRW 15 billion, which is the limit of the principal debt. Nevertheless, the instant distribution schedule was prepared to distribute the dividend amount of KRW 46,151,306 as to the dividend amount of KRW 15,835,137, which is calculated on the basis of the claim amount of KRW 15 billion,5 billion.

(2) In addition, Defendant B received dividends of KRW 355,865,021 from another auction procedure with respect to the claim against K. In addition, Defendant B is expected to receive dividends of KRW 750,00,000, based on the right to collateral security of KRW 3,000 on January 12, 1998 from the right to collateral security of KRW 1,105,865,021 (=35,865,021 + 750,000,000) from the claim amount to be distributed to Defendant B. Ultimately, the amount of dividends of Defendant B should be revised from KRW 15,835,137, which was reduced above to KRW 14,904,795.

B) Determination

(1) As to the assertion of demurrer against distribution relating to the subsidiary nature of the guarantor

(A) The fact that Defendant B received the payment order of April 29, 2004, stating that “4,00,000,000 won and damages for delay from March 1, 2003 are paid” in the instant lawsuit by filing a lawsuit against L and M with the Daegu District Court Decision 2003Gahap1022, and that Defendant B received the payment order of April 29, 2004, stating that “The payment order of Defendant B ( Daegu District Court 2004Da12918, Daegu District Court 2004) seeking the payment of the guaranteed obligation against K” (Seoul District Court 2004Da12918, Daegu District Court 200,172 and its payment for delay and demand expenses from January 21, 2004.”

(B) However, considering the overall purport of evidence Nos. 1, 4, 5, and 13 as well as the whole pleadings, Defendant B concluded a sales contract with L to purchase real estate located in Daegu Northern-gu, Daegu-gu, but rescinded the above sales contract due to L's breach of contract, Defendant B prepared an agreement on January 20, 198 between L, net0, and M with L to pay 1,400,000 won as the purchase price to Defendant B as the principal and interest of 280,000,000 won as the penalty within two years from the agreed date, but the interest rate of 2.5% per annum shall be calculated by including the principal and interest of 0.20,000,000 won as the interest rate of 2.0,000,000 won as the interest rate of 2.3,000,0000 won as the interest rate of 2.3,000,0000 won as the principal and interest of the claim No. 29.3, 192,03,030,00,030, Jan. 198, 1999.

(C) In light of the above facts, the scope of the contract deposit claims against Defendant B and M and the guarantee claims against K is identical. Since the recognition claim of this case was made with respect to some claims against Defendant B L and M, it cannot be deemed that Defendant B’s guarantee claims against Defendant B were reduced to the scope of the recognition report of this case, and there is no evidence to support that Defendant B’s guarantee claims against Defendant B were reduced to the scope of the recognition report of this case. Accordingly, this part of the Plaintiff’s assertion is without merit.

(2) As to the assertion of demurrer against distribution relating to partial repayment of debt

(A) The portion received in another auction procedure

(1) Determination on the cause of action

The fact that Defendant B guaranteed 10,80,394 won from the date of distribution of the voluntary real estate auction procedure in Daegu District Court on January 20, 2007 (hereinafter referred to as "date of distribution") to Defendant B on the date of distribution of the voluntary real estate auction procedure in the Daegu District Court on January 4, 2005 (hereinafter referred to as "date of distribution") to 225,064,627 won from the date of distribution of the voluntary real estate auction procedure in the Daegu District Court on January 9, 2007 (hereinafter referred to as "date of distribution on January 9, 2007") to the Plaintiff and the Defendant on January 20, 2008 (hereinafter referred to as "the amount of distribution") to the Plaintiff and the Defendant on January 20, 2005 (hereinafter referred to as "Defendant B"), barring any special dispute between the Plaintiff and the Defendant, and thus, the remaining amount of the claim against the Defendant B should be deducted from 305,3645,2545,27

② Defendant B’s defense is asserted to the effect that the dividends distributed on the date of distribution as of January 4, 2005 and January 9, 2007 are preferentially borne by Defendant B, not jointly borne by the network0 and the network0, and that when calculating the portion to be apportioned by Defendant B in the instant auction procedure, the portion to be apportioned from the claim amount for distribution to Defendant B cannot be deducted from the other auction procedure in calculating the amount of the claim for distribution to Defendant B. In addition, in the instant auction procedure, the amount and interest rate of the principal or damages for delay are different depending on the case where a lawsuit is filed against multiple names of joint and several obligors or joint and several obligors, and where part not jointly borne by the debtor has been partially borne by the principal or damages for delay, the dividends shall be preferentially appropriated for the repayment of the debt jointly borne by the person who performed the obligation, and then the portion to be jointly borne shall be appropriated (see Supreme Court Decision 2013Da314, Mar. 14, 2013).

다. 위와 같은 법리에 비추어 먼저 2005. 1. 4.자 배당기일의 배당금 130,800,394원 부분에 관하여 보건대, 2005. 1, 4.을 기준으로 한 피고 B의 1998. 1. 20.자 약정서에 기한 망 0에 대한 보증채권은 원리금 합계 11,764,703,068원[= 10,336,683,204원(원금 1,680,000,000원을 1998. 1. 20.부터 2004. 7. 19.까지 월 이율 2.5%, 6개월마다 이자를 원금에 산입하여 복리 계산한 원리금 합계액, 원 미만 버림, 이하 같다) + 2004. 7. 20.부터 2004. 12. 19.까지의 이자 1,292,085,400원(= 10,336,683,204원 X 2.5% × 5) + 2004. 12.20.부터 2005. 1. 4.까지 이자 135,934,464원(= 10,336,683,204원 × 30% × 16/365)]으로 피고 B의 2004. 4. 29.자 지급명령에 기한 K에 대한 보증채권 원리금 합계 11,574,274,858원 원금 8,988,420,172원 + 2004. 1. 21.부터 2004. 12. 20.까지 이자 2,471,815,547원(= 8,988,420,172원 × 2.5% X 11) + 2004. 12. 21.부터 2005, 1. 4.까지 이자 110,816,139원(= 8,988,420,172원 × 30% X 15/365) + 독촉비용 3,223,000원]보다 190,428,210원(= 11,764,703,068원 - 11,574,274,858원)이 더 많으므로, 피고 B가 2005. 1. 4.자 배당기일에서 배당받은 배당금 130,800,394원 전액은 망0 이 공동으로 부담하지 않는 부분 채무 변제에 우선 충당되고 K의 보증채무와 공동으로 부담하는 부분에는 충당되지 않는다.라 다음으로 2007. 1. 9.자 배당기일의 배당금 225,064,627원 부분에 관하여 보건대, 2007. 1. 9.을 기준으로 한 피고 B의 1998. 1, 20.자 약정서에 기한 망 0에 대한 보증채권은 원리금 합계 20,423,605,105원[= 17,879,992,478원(= 원금 1,680,000,000원을 1998. 1. 20.부터 2005. 1. 19.까지 월 이율 2.5%, 6개월마다 이자를 원금에 산입하여 복리 계산한 원리금 합계액 11,887,185,684원에서 2005. 1. 4.자 배당금 130,800,394원을 공제한 금액) + 2006. 7. 20.부터 2006, 12. 19.까지 이자 2,234,999,059원(= 17,879,992,478원 × 2.5% X 5) + 2006. 12, 20.부터 2007. 1. 9.까지 이자 308,613,568원(= 17,879,992,478원 X 30% x 21/365)]으로 피고 B의 2004. 4. 29.자 지급명령에 기한 K에 대한 보증채권 원리금 합계 14,307,739,622원[= 원금 8,988,420,172원 + 2004. 1. 21.부터 2006. 12. 20.까지 이자 5,168,341,598원(= 8,988,420,172원 × 2.5% × 23) + 2006. 12. 21.부터 2007. 1. 9.까지 이자 147,754,852원(= 8,988,420,172원 X 30% X20/365) + 독촉비용 3,223,000원]보다 6,115,865,483원(= 20,423,605,105원 - 14,307,739,622 원)이 더 많으므로, 피고 B가 2007. 1. 9.자 배당기일에서 배당받은 배당금 225,064,627원 전액은 망 0이 공동으로 부담하지 않는 부분 채무 변제에 우선 충당되고 K의 보증채무와 공동으로 부담하는 부분에는 충당되지 않는다.

H. Ultimately, the total amount of dividends distributed by Defendant B on the date of distribution as of January 4, 2005 and January 9, 2007, was appropriated for the repayment of the part that was not jointly borne by Defendant B, but for the portion that was not jointly borne by Defendant B, and thus, when calculating the portion that was to be apportioned by Defendant B, the dividends distributed by Defendant B on the date of distribution as of January 4, 2005 and January 9, 2007 cannot be deducted from the amount of the claim for distribution to Defendant B at the auction procedure of this case. Accordingly, the above defense by Defendant B is with merit.

(B) The portion to be distributed during the instant auction procedure

(1) Determination on the cause of action

In a case where multiple creditors create a single right to collateral on a certain immovable at the same opportunity and complete the same, the right to collateral security is to secure all the amount of the secured debt of the quasi-co-owners up to the maximum debt amount, and the right to collateral security cannot be determined before the secured debt is determined, but if the amount of the secured debt becomes final and conclusive, the right to collateral security is to be completed according to the ratio of the amount of the secured debt, so the right to collateral security should be paid according to the ratio of the amount of the secured debt each time (see Supreme Court Decision 2006Da31887, Mar. 13, 200).

B. In light of the above legal principles, the defendants completed the right to collateral security of KRW 3,00,00,000 with respect to the case of this case as to January 13, 1998. At the auction procedure of this case, the court below established the distribution schedule of this case with the content that the defendants distribute the amount of KRW 3,00,000,000 to the defendants based on the above right to collateral security, as seen above. In light of the above legal principles, Gap evidence Nos. 1, 3, 4, 4, and 4, and the purport of the whole arguments, as to the secured claim of the above right to collateral security of this case, the defendant Eul submitted the distribution statement of KRW 369,790,00,00 with respect to the above secured claim of KRW 369,790,000,000 with respect to the above secured claim of KRW 3,00,000 with the aggregate claim of KRW 59,120,83710,700.

C. Therefore, barring any special circumstance, the court shall revise the distribution schedule, based on the remaining amount of claims obtained by deducting KRW 750,000,000 from the amount of claims for distribution to Defendant B K, in consideration of the respective distribution order and the amount of claims of the Plaintiff and the Defendant B.

② Determination on Defendant B’s assertion

Defendant B’s ground of objection is limited to the date of distribution. The Plaintiff’s argument that the portion to be distributed in the auction procedure of this case ought to be deducted from the amount of the claim to Defendant B’s distribution to Defendant B does not constitute a ground of objection since it was not a ground for distribution until the date of distribution. However, in a lawsuit of objection to distribution, the Plaintiff may assert the ground that occurred after the date of distribution and until the date of closing argument in fact-finding proceedings (see, e.g., Supreme Court Decision 2007Da27427, Aug. 23, 2007). However, the above argument by Defendant B is without merit, as alleged by the Plaintiff, when the amount to be distributed in the auction procedure of this case is deducted from the amount of the claim to be distributed, the amount to be distributed is calculated based on the deducted amount of the claim and the amount to be deducted again from the amount of the claim to be distributed. However, Defendant B is entitled to receive the distribution in the order of distribution order with respect to the claim to be distributed to Defendant B after the distribution order.

3) Sub-committee

A) In a judgment on a lawsuit of demurrer against distribution, in principle, the creditor entitled to receive distributions and the amount thereof are set in a judgment on the lawsuit of demurrer against distribution (the first sentence of Article 157 of the Civil Execution Act). However, when it is deemed inappropriate to set such a judgment, the court shall make a distribution schedule again and order to take other distribution procedures (the second sentence of Article 157 of the Civil Execution Act);

B) Of the instant distribution schedule, the Defendants’ dividends amounting to KRW 3,00,000,00 among the dividends amounting to KRW 1,200 shall be maintained, and the amount of KRW 6,00,000 as to Defendant B’s dividends amounting to KRW 1,00,000,000 as to the dividend amount shall be deducted, and the amount of KRW 6,000,000 as to Defendant B’s dividends amounting to KRW 1,27,37,411 as to the dividend amount in proportion to the Plaintiff’s claim amount and Defendant B’s dividends amounting to KRW 44,227,37,37,41 as to the dividend amount (i.e., the amount of claim as to the dividend amount in the instant distribution schedule) shall be calculated based on the respective distribution ratio to the Plaintiff and Defendant B’s dividends amounting to KRW 6,00,000,000,000 as to the dividend amount.

C) However, the instant distribution schedule was not prepared by dividing the dividend items 1 through 4, but was prepared by combining the dividend items into one distribution schedule. The creditors entitled to receive a dividend for one dividend item and the creditors entitled to receive a dividend for two dividend items are different. The amount of actual dividends for the dividend items 1 and 2 cannot be calculated on the dividend items 1 and 2 because there is no evidence to specify the respective sales proceeds, execution expenses, and the sales amount for the dividend items 1 and 2. The Plaintiff and Defendant B’s claim amount relating to the dividend items 1, which are the basis for proportional distribution cannot be calculated. Thus, in this judgment, it is inappropriate to determine the amount of the dividend specifically with the creditors entitled to receive a dividend for the disputed portion concerning the dividend amount 1 and 2.

D) Therefore, pursuant to the latter part of Article 157 of the Civil Execution Act, the part concerning dividend items 1 and 2 among the instant distribution schedule shall be revoked, and the executing court shall re-preparation the distribution schedule in the same manner as described in the foregoing sub-paragraph (b) and order the creditors to distribute the dividends in proportion to the creditors’ ranking and amount of claims, and this judgment shall not specify the amount of dividends against the Plaintiffs and the Defendants. The portion concerning the amount of dividends in Defendants B and G distribution concerning the dividend items excluding the dismissed portion.

1) The plaintiff's assertion

A) The primary claim

L has been subject to qualified acceptance as to the inherited property of the deceased 0, so the inherited property of the inheritor and the inherited property of the inheritor are strictly divided. Since the dividend article 3 falls under the inherited property as the inherited property inherited from L, the inherent creditor of L, who is a qualified acceptor, cannot perform compulsory execution as to the dividend article 3, the inherited property. However, the defendant B, and G, based on the inherent claim against L, may not be allowed to enforce compulsory execution as to the inherited property based on the inherent claim of the defendant B, and G. Therefore, all of the dividend amounts against the defendant B, and G, should be revised to zero won.

B) The assertion on the conjunctive claim

Even if the claim against Defendant B and G falls under the inheritance claim, the distribution schedule should be revised to the effect that M bears the obligation corresponding to 1/2 for the claim for distribution by Defendant B and G, even if the claim against Defendant B and G falls under the inheritance claim, and that the distribution schedule should be revised to the effect that the claim for distribution by Defendant B and G is paid with the obligation corresponding to 1/2 for each of the claims for distribution by Defendant B and G. In addition, the distribution schedule should be revised to the effect that the amount paid by Defendant B and G in relation to the claim for distribution by deducting the amount paid by priority from the amount of claim

2) Determination

A) Article 1028 of the Civil Act provides, “An inheritor may approve inheritance on the condition that he/she shall repay his/her obligation and testamentary gift to the extent of the property to be acquired by inheritance.” If an inheritor files a report on a qualified acceptance pursuant to the foregoing provision, the liability of a qualified acceptor for the obligation of the inheritee is limited to inherited property, and as a result, an obligee may not perform compulsory execution against the inheritor’s inherent property, and may obtain satisfaction of a claim only from the inherited property, barring any special circumstances. In addition, barring any special circumstance, such as the acquisition of a security right to inherited property, deeming that an inherent obligee of a qualified acceptor may not perform compulsory execution against an inherited property by taking the inherited property as an inherent claim under the condition that the inherited property is not satisfied from the inherited property, is consistent with the principle of equity or with the purport of the system of qualified acceptance. This likewise applies to a case where an inherent obligation of a qualified acceptor is a tax obligation imposed on the inherited property itself (see Supreme Court Decision 2015Da250574, May 24, 2016).

B) In light of the aforementioned legal principles, in the instant case, the report is accepted by filing a qualified acceptance report with respect to the inherited property 0 with respect to L’s inherited property, and L’s inheritance of the dividends 3 from L’s net is as seen earlier. As such, L’s inherent obligee, a qualified acceptor, cannot perform compulsory execution with respect to the dividends 3, which are inherited property.

C) However, comprehensively taking account of the overall purport of evidence evidence evidence No. 4 and the argument, the Plaintiff filed a lawsuit against L, including the Daegu District Court 2013 Gohap204250, demanding the performance of joint and several liability obligations against N Co., Ltd., the principal debtor, and received a judgment of the Daegu District Court on February 18, 2016 that “N Co., Ltd., Ltd., Ltd., 11,936,930,181 won, and the Plaintiff jointly and severally agreed on 21% per annum from February 7, 1998 to March 17, 2014, and 20% per annum from the next day to September 30, 2015, and 15% per annum from the next day to the date of complete payment,” and the Plaintiff is recognized as having received a decision of provisional execution that decided to commence a compulsory auction for dividends under the above judgment with respect to dividends No. 3.

D) According to the above facts, the plaintiff enforced a compulsory execution against the distribution of dividends, an inherited property, with a unique claim against L, and even if the distribution of dividends is illegal, since the amount to be distributed to the plaintiff is not increased due to the illegal act, the plaintiff's main claim and preliminary claim seeking correction of the portion concerning the distribution of dividends, excluding the dismissed portion, among the distribution schedule of this case, constitute the portion not related to the increase of the amount of dividends, all of them are without merit.

D. The dividend amount of Defendant B and G related to dividends 4, excluding the dismissed portion

1) Determination as to the cause of claim

A) In full view of the facts that M has accepted a qualified acceptance report on the inherited property of 0, M, the fact that M succeeds to 4 of the dividends from M, and the purport of Gap evidence Nos. 3, 5 and 6, the Daegu District Court filed a lawsuit against M for the performance of joint and several liability obligations to L, which is the principal debtor, and "L and M, jointly and severally, shall be 4,00,000,000 and its equivalent amount, from March 1, 2003, to August 18, 200, 200, and the amount of KRW 4,000,000, and KRW 20,000,000, KRW 20,000,000 were 4,000,000 per annum, and KRW 4,000,000,000 were 16,000,0000,000 per annum 27,000,000,000.

B) According to the above facts, the inherent creditor of M, who is a qualified acceptor, is unable to enforce compulsory execution against 4 inherited property, which is inherited property. As Defendant B and G, based on the inherent claim against M, demanded a distribution in the auction procedure in this case, Defendant B and G, barring special circumstances, the remaining portion of the dividend amount, excluding the dismissed portion among the dividend amount of Defendant B and G as to the dividend goods 4 in the instant distribution schedule, shall be deleted, and the deleted portion shall be corrected as the Plaintiff’s dividend amount.

2) Determination as to Defendant B and G’s assertion

A) Possibility to demand a distribution on inherited property based on inherent claims

1) Defendant B and G asserted that the claim for distribution of inherited property based on the inherent claim against Defendant B and G constitutes a claim identical to each other. In such a case, even if Defendant B and G demanded the distribution of inherited property based on the inherent claim against M, the substance of the claim is merely one of the same claim that belongs to the same person and that of the same claim that belongs to the same person, and thus, the distribution of the claim does not bring about a result detrimental to the legitimate interest and equity of inheritance creditors. Therefore, in a case where there is no benefit of distinguishing the inherent claim from the inherent claim, the claim for distribution of inherited property based on inherent claim should also be allowed.

2) In principle, a qualified acceptor’s liability for the obligation of the inheritee is limited to an inherited property if the inheritor files a report on a qualified acceptance. As a result, the inheritor’s obligee cannot perform compulsory execution against the inheritor’s inherent property, barring any special circumstance. The inherent obligee of a qualified acceptor’s inherent property is prohibited from compulsory execution against the inherited property by taking the inherited property as the inherent property as the property subject to a liability (see, e.g., Supreme Court Decision 2015Da250574, May 24, 2016). As such, even if the inheritor’s inherent obligee cannot become a responsible property against the inherent obligee from the original date until the predecessor dies, even if the inheritor’s inherent obligee had a claim identical with the inherent property of the inheritee, prior to the death of the inheritee, the inheritor’s inherent obligee may not perform compulsory execution against the inheritee’s inherent property, and the inherent obligee’s inherent property cannot be subject to compulsory execution against the inherited property only on the ground that the inheritance obligee’s inherent property and the inherited property are not subject to compulsory execution against the inheritance obligee’s inherent property.

B) Regarding the statutory simple acceptance

1) Whether the property list was omitted intentionally

A) Defendant B and G’s assertion

M intentionally omitted the machinery and equipment leased to K stocks and corporation V (hereinafter referred to as "V") by intentionally filing a report on qualified acceptance with respect to the net 0 inherited property, in the list of property, which constitutes a ground for statutory simple acceptance under Article 1026 subparagraph 3 of the Civil Code, and thus, the qualified acceptance of M is void.

B) Determination

(1) The phrase "when the inheritance is not entered in the inventory" under Article 1026 subparagraph 3 of the Civil Code, which is the reason for the simple approval by law, refers to the case where the inheritance is concealed in the qualified acceptance and thereby the inheritance obligee is not entered in the inventory with the intention to prejudice the inheritance obligee (see Supreme Court Decision 2003Da30968 delivered on November 14, 2003, etc.).

(2) In light of the above legal principles, the following circumstances, which can be seen by comprehensively taking account of the overall purport of statements and arguments as to the health stand, Gap evidence No. 15, Eul evidence No. 2, Eul evidence No. 2, Eul evidence No. 27 as to the instant case, namely, ① the net0 set up a pledge on part of the K’s own shares as security of the network J on May 20, 2002. ② The net0's K shares were not entered in the net0's inherited property at the time of reporting a qualified acceptance as to the deceased P's inherited property, but it is difficult to view the deceased's K's shares as the qualified acceptance as the inherited property if it was intended to impair the inheritance obligee by concealing the net0's shares, and ③ the net0 was installed as the machinery, equipment, and facilities leased to the network and facilities to which the net used as security of the claim against the deceased J's shares were not entered in the net's property list, in light of the fact that the net and facilities leased were not entered in the inherited property list and facilities.

Therefore, Defendant B and G’s above assertion is without merit.

2) Whether the non-consumption is illegal

A) Defendant G’s assertion

M sold W, X, Y, Z land 4 parcels and 4 buildings on the ground (hereinafter collectively referred to as “instant AA-dong real estate”) that were inherited from the network 0 assets after qualified acceptance, to V. However, while the value of the instant A-dong real estate at the time was at least KRW 1,278,00,000, the value of the instant real estate at the time was at least KRW 1,278,000,000, the amount of which had preferential reimbursement right is over KRW 1,00,000, which is equivalent to the maximum debt amount of the right to collateral security. Accordingly, V acquired all the instant A-dong real estate in excess of the amount of preferential reimbursement.

The disposal of real estate, such as the above, not only gives disadvantages to the exercise of rights through compulsory execution, etc. by other inheritance creditors, but also brings about the result that some specific inheritance creditors gain profits in preference to other inheritance creditors. Therefore, selling the real estate of this case to M AV constitutes an illegal consumption, which is a legal ground for compulsory approval under Article 1026 subparagraph 3 of the Civil Act, and thus, the qualified acceptance of M is void.

B) Determination

(1) In a case where an inheritor disposes of inherited property after a qualified acceptance is made or a renunciation is made, it shall be viewed that the inheritor simply approves the inheritance obligee or other inheritor only if it falls under an illegal consumption of the inherited property as stipulated in the above subparagraph 3, and further, the "illegal consumption of the inherited property" under the above subparagraph 3 means the act of losing the value of the property by via an ample, ample, etc. without any justifiable reason (see, e.g., Supreme Court Decision 2003Da63586, Mar. 12, 2004).

(2) In light of the above legal principles, it is difficult to view the interest rate of KRW 1,11, and KRW 27 as interest rate of KRW 25.1 to KRW 1,278,00,00 for KRW 1,278,00 for KRW 1,278,00,00 for KRW 20 to KRW 1,278,00,00 for KRW 25,00 for KRW 1,00 for KRW 70 to KRW 25,00 for KRW 70 to be paid to Defendant 2.0, KRW 125,00 to be paid by the seizure authority, KRW 25,00 for interest rate of KRW 27.1 to be paid to the Nam-gu Office, Seoul, and KRW 25,00 for KRW 20 to be paid to the bankruptcy trustee of KRW 46,00,00 for KRW 27,00 to be paid to Defendant 25,00 for KRW 81,2081 to be paid to the bankruptcy trustee.

3) Sub-committee

Therefore, Defendant B’s dividend amount of KRW 94,861,149 relating to Defendant B’s dividends amounting to KRW 57,908,094 (=94,861,149 - dismissal KRW 36,953,055); Defendant G’s dividend amount of KRW 115,214,432 - dismissal KRW 72,505,634 (i.e., KRW 115,214,432 - dismissal KRW 42,708,798); Plaintiff’s dividend amount of KRW 185,145,077 - 264,806,930 [185,145,07 + KRW 36,953,055 won + KRW 36,953,953,0561, 1497,7497,7947,7947,7947,757, etc.) are excluded from the Plaintiff’s’s dividend amount of KRW -145,75.

Therefore, among the plaintiff's main claims in this case, the part of the plaintiff's claim for correction of the distribution schedule exceeding 6,687,93,930 won out of the distribution amount of the distribution amount of the distribution amount of the distribution amount of the distribution amount of the distribution amount of the distribution amount of the distribution amount concerning the defendant Eul 3, 36,953,055 won out of the distribution amount of the distribution amount concerning the distribution amount of the distribution amount concerning the distribution amount of the distribution amount of the distribution amount concerning the defendant Eul 4, and 42,708,798 won out of the distribution amount of the distribution amount concerning the distribution amount of the distribution amount of the distribution amount of the distribution amount of the distribution amount of the distribution amount of the distribution amount of the distribution amount of the distribution amount of the distribution amount of the distribution amount of the distribution amount of the distribution amount of the distribution amount of the defendant Eul 3 is dismissed, and each of the plaintiff's main claims and conjunctive claims against the defendant Eul and Eul except the above dismissed part are

Judges Lee Sung-sung

Judge Use-Appellee