배당이의
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
1. Basic facts
A. On November 11, 2016, Nonparty D issued to the Defendant a promissory note with a face value of KRW 500 million, and on the same day, a notary public prepared and issued a notarial deed on the said promissory note under No. 907 of 2016.
B. With respect to the distribution procedure case by Busan District Court Branch C, on July 26, 2017, the said court drafted a distribution schedule that allows the Plaintiff to pay KRW 7,121,618 among the actual dividends, KRW 711,130 to the Plaintiff, KRW 94,950 to the Plaintiff (execution cost), KRW 1,950,212 to the Plaintiff, the person having the right to demand a distribution (execution cost), and KRW 4,365,326 to the Plaintiff, and the Plaintiff to pay KRW 4,365,326 to the Defendant, respectively (hereinafter referred to as “instant distribution schedule”).
C. The Plaintiff appeared on the aforementioned date of distribution, and raised an objection against the total amount of the Defendant’s second-class dividend, and filed a lawsuit of demurrer against the distribution on July 27, 2017.
2. The assertion and judgment
A. The plaintiff asserts that the above promissory note No. 10 was falsely prepared, but the defendant received dividends on the above promissory note No. 10, so the second dividend amount against the defendant among the distribution schedule of this case should be deleted, and that the distribution schedule of this case should be revised by distributing it to the plaintiff.
B. In a lawsuit of demurrer against distribution, the Plaintiff did not assert or prove the facts constituting the grounds for the demurrer against distribution. As such, the obligee who filed an objection against distribution by asserting that the other party’s claim is the most advanced, bears the burden of proof as to such obligee (see, e.g., Supreme Court Decisions 97Da32178, Nov. 14, 1997; 2005Da45995, Oct. 12, 2006); and there is insufficient evidence to acknowledge that the said promissory deed was made false only with the evidence of the Plaintiff’s submission, and there is no other evidence to prove otherwise.
3. Thus, the plaintiff's claim is dismissed as it is without merit.