beta
(영문) 서울중앙지방법원 2018.07.12 2017가단31447

공탁금 출급청구권 확인

Text

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. The Plaintiff and the “Defendant B and the designated parties indicated in the separate sheet” (hereinafter “Defendants”) were co-owners of each land listed in the separate sheet (hereinafter “instant land”).

The Plaintiff filed a lawsuit for partition of co-owned property against the Defendants as Suwon District Court Decision 2009Kadan83250, and the said court rendered a judgment on May 3, 2011 that “The Plaintiff shall attach the instant land to auction and distribute the amount excluding the auction expenses to the Plaintiff at each rate of 160.35/900, and 246.5/900, respectively, to the Defendants,” and the said judgment was dismissed, and the appeal was finalized on January 31, 2012.

B. On March 5, 2012, the Plaintiff applied for a compulsory auction on the instant real estate pursuant to the above judgment, and subsequently rendered a decision to commence the auction by partition of co-owned property on March 6, 2012. At the above auction procedure (hereinafter “instant auction”), the auction court, under the first priority order of KRW 543,285,708, the amount to be actually distributed on August 21, 2014, and KRW 130,000,000, and KRW 199,064,129, and KRW 3 owners, the second priority order of KRW 71,407,193, respectively, to the Defendants, who were the second collective security holders of this case, did not raise any objection to the distribution (hereinafter “instant distribution schedule”). The Defendants filed a lawsuit of demurrer against D and E, and the entire amount of the distribution amount of KRW 15,015,00,000 against the Defendants.

C. In Seoul High Court 2015Na30970, the appellate court in the lawsuit of demurrer against the distribution, the lower court deleted KRW 199,064,129, which was the full amount of dividends to E, out of the instant distribution schedule, on the ground that the secured claim of the second right to collateral security of this case became extinct due to the expiration of the extinctive prescription, and the extinctive prescription of the secured claim of the first right to collateral security of this case of this case of D has expired, but the Defendants raised a lawsuit of demurrer against the distribution only for KRW 33,204,596, out