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

Daejeon District Court Decision 2004Hu2728 Decided September 8, 2005, the amount of 5,421,449 won against the plaintiff among the distribution schedule prepared by the same court on September 8, 2005, shall be 30,000,000 won, and the amount of 36,142,94 won against the trustee in bankruptcy of the Korea Deposit Insurance Corporation of the Daejeon District Credit Cooperatives, Daejeon District Court shall be corrected to 16,428,795 won.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff against the defendant shall be revoked. Of the distribution schedule prepared by the Daejeon District Court on September 8, 2005, the amount of 5,421,449 won against the plaintiff among the distribution schedule prepared by the same court on September 8, 2005, the amount of 30,000,000 won for the plaintiff, and the amount of 36,142,994 won for the amount of 16,428,795 won for the trustee in bankruptcy against the Korea Deposit Insurance Corporation of the Daejeon Daejeon District Court.

The following facts can be acknowledged in full view of the following facts: Gap evidence 1 to Gap evidence 3, Eul evidence 1, Eul evidence 1, 2, 16, and 17 (including each number), the witness non-party 1's testimony, and the whole purport of the pleadings.

A. On June 11, 2001, the Daejeon High Credit Union (the bankruptcy trustee of the Korea Deposit Insurance Corporation) agreed on June 11, 2004, 11.5% per annum, overdue interest rate of 20% (hereinafter “the instant loan”), and Nonparty 1 did not fully pay the principal and interest of the instant loan, and did not pay 70,291,892 won as of September 29, 2005. [The Plaintiff asserted that the debtor of the instant loan is not Nonparty 1, but Nonparty 2, who was the administrator of the Korea Deposit Insurance Corporation). However, according to the above evidence, Nonparty 1, the Daejeon High Credit Union, which was the administrator of the Korea Deposit Insurance Corporation, did not directly obtain the loan of this case from Nonparty 1, the content of the instant loan of this case, which was offered to Nonparty 1, 2000, 200, 201.

B. Accordingly, the Daejeon Japan Credit Union filed an application for provisional seizure of KRW 100 million out of the loans of this case with the claim against Nonparty 1, Seo-gu, Seo-gu, Daejeon (hereinafter “the real estate of this case”). On October 23, 2002, Daejeon District Court 2002Kadan16412, the provisional seizure registration was completed on September 18, 2003, which was the creditor Daejeon Japan Credit Union, with the claim amounting to KRW 100 million, the provisional seizure registration was completed on September 18, 200, and the plaintiff filed an application for provisional seizure of this case with the Seoul District Court 203Kadan18148, the provisional seizure registration was completed on September 18, 200, the claim amounting to KRW 30 million,000,000,000 and the provisional seizure registration was completed on September 18, 2003, the defendant again filed a claim for the loans of this case as the creditor of this case.

C. On July 22, 2004, the Daejeon District Court prepared a distribution schedule that distributes the instant real estate to the Plaintiff on September 8, 2005, 5,421,449 won (distribution rate of 18.07%) among the creditors of provisional seizure on September 8, 2005, which was the date of distribution, at the request of the National Bank of Korea, Co., Ltd. (hereinafter “instant auction”). 36,142,94 won (18,071,497 won + 18,071,497 won + 18,071,497 won) and the Defendant Deposit Insurance Corporation (18.07%).

D. On the date of the above distribution, the Plaintiff raised an objection against the entire amount distributed to the Defendant, and then filed a lawsuit of demurrer against the distribution of this case.

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

(1) On June 11, 2001, the Plaintiff, who was loaned KRW 500 million from the Daejeon Credit Union, was not a non-party 1 but a non-party 2 corporation (the trade name was changed to non-party 3 corporation) whose representative director was the non-party 1. Thus, the Defendant, who was the Daejeon Credit Union and the bankruptcy trustee, did not hold the claim for loans against the non-party 1. The amount of dividends to the Defendant should be zero won. Of the Plaintiff’s amount of credit, the amount of dividends to the Defendant should be KRW 19,714,19 [the amount of dividends to the Defendant [the amount of dividends] = KRW 30,00,000 (the amount of claims) - KRW 5,421,49 (the amount of dividends to the Plaintiff according to the distribution schedule] - KRW 4,864,352 (the amount of dividends to the non-party 1 corporation, the non-party 3094, 294, 19794, 29494, 197

(2) In addition, the Plaintiff asserts that in the Daejeon District Court 2003Gahap88666, which filed a lawsuit for the registration of establishment of a collateral security (hereinafter referred to as the "registration of change of collateral security (hereinafter referred to as the "registration of change of collateral security") against the non-party 1 and the non-party 3 corporation, the obligor of the loan of this case may not be allowed to do so against the non-party 1, because such assertion cannot be permitted against the statement of agreement and the principle of good faith, since it is not possible to correct the registration of establishment of collateral security (number omitted) from the above company to the non-party 1 (hereinafter referred to as the "non-party 1).

(3) Furthermore, even if the Plaintiff and the trustee in bankruptcy possess the claim for loans against Nonparty 1, the Plaintiff asserted that the Defendant received dividends of KRW 681,407,752 on February 7, 2006 in the distribution procedure of the real estate auction case, which was conducted separately from the instant auction procedure, and appropriated the above loans for the repayment of the claim. As of July 13, 2006, the amount of the above loans as of July 13, 2006, was merely KRW 57,511,403, which was 36,142,94 [10,000,000 + KRW 100,000 + KRW 100,000,000 + KRW 107% on August 39, 2006; KRW 10,3109,000; KRW 3941,571,947; KRW 949,719,7945].

B. Determination

(1) Judgment on the Plaintiff’s assertion

The debtor who borrowed KRW 500 million from the Daejeon High Credit Union on June 11, 2001 is not the non-party 2 corporation but the non-party 1 is acknowledged as above. Therefore, the plaintiff's above statement of delivery on the premise that the non-party 1 is not the debtor of the loan of this case is without merit.

(2) Judgment on the Plaintiff’s assertion of the Plaintiff’s (B)

In the lawsuit of registration of change of the right to collateral security filed by the defendant against the non-party 1 and the non-party 3 corporation, the fact that the non-party 1 asserted that the non-party 3 corporation was the debtor of the loan of this case, and the defendant invoked it as a profit does not conflict

However, as seen earlier, Nonparty 1 received the instant loan from the Daejeon High Credit Union, and written consent to provide the instant loan for factory sites, etc., and furthermore, according to each of the evidence Nos. 3 through 15 (including each number), the above company entered into a contract to establish a right to collateral with the Daejeon High Credit Union on June 7, 2001, which entered the debtor as the above company when entering into the contract to establish a right to collateral security with the Daejeon High Credit Union on June 7, 2001, and entered the debtor into the contract to establish a right to collateral security with the Daejeon High Credit Union on the same day as the Daejeon High Credit Union No. 7392, the above company was entered as 200,000,000,000,000 won as the above company's trade name at the time, and the defendant did not file a lawsuit against Nonparty 1 and the above company for correction or alteration of the loans from 00,000 won to 15,000,000 won.

In light of these facts, since the land for a factory at Sungri was offered as a security for the loan obligation of this case, the debtor in the registration of the establishment of the right to collateral security can be found to have been recorded as a non-party 2 corporation by mistake even though the debtor in the registration of establishment of the right to collateral security was the non-party 1, and the defendant filed a lawsuit for registration of alteration of the right to collateral security. In order to correct this, the defendant asserted that the non-party 1 was the non-party 3 corporation in the course of this lawsuit that the debtor of the loan of this case by exercising the right to collateral security upon the judgment of the above company was the non-party 3 corporation, and the defendant can use the lawsuit against the non-party 1 as profits and can be seen to have been withdrawn from the lawsuit against the above non-party 1 and responded to the mediation of the right to collateral security as above. Thus, it is difficult to view the defendant's above litigation act as exemption of the loan obligation of this case against the non-party 1 or waiver of its claim.

(3) Determination as to the Plaintiff’s assertion of causes of harm

On October 8, 2004, the Daejeon District Court, upon filing a request for auction based on the Defendant’s above collateral security, decided to sell real estate on October 8, 2004 at the Daejeon District Court (Seoul District Court 2004Ma37119). On February 7, 2006, the Defendant received 681,407,752 won from the date of distribution, and appropriated it for the repayment of the obligation of the instant loan, and as of July 13, 2006, the fact that the balance of the claim for the instant loan was 57,51,403 won is a dispute between the parties.

However, as the plaintiff's assertion, whether the distribution schedule of this case should be revised by dividing the amount of 200 million won to the defendant's claim based on the amount of the other auction cases implemented 10 months after the amount of the distribution was deducted by the defendant's remaining amount of the claim in other auction cases implemented since 10 months after the date of distribution of the auction procedure of this case. As seen earlier, the defendant had a claim amounting to KRW 700 million as the principal and interest of the loan of this case against the non-party 1, who is the owner of the real estate of this case, around September 2005, as the principal and interest of the loan of this case, and the defendant committed the provisional seizure of this case to the real estate of this case with only KRW 200 million as the claim amount of the provisional seizure claim of this case to the plaintiff in proportion to the amount of each claim of other creditors with the second priority as the claim amount of the provisional seizure claim of this case. At the time of the distribution date of this case, the defendant's claim against the non-party 1 was not in the distribution procedure.

Furthermore, the plaintiff in a lawsuit of demurrer against distribution may use the grounds for revocation, rescission, offset, repayment, etc. which occurred after the date of distribution as the means of attack. However, it refers to the case where the defendant's claim is extinguished or nonexistent and the distribution is made in accordance with the original distribution schedule, etc. In this case, when the defendant did not receive the above dividends, the defendant received dividends of KRW 681,407,752 in other auction procedures while the defendant did not receive the above dividends. However, even if the above dividends were deducted from the loans of this case, it is obvious that the amount of loans of KRW 57,511,403 remains at the time of deducting the above dividends, and thus, it is not received by the defendant in this case in excess of the principal and interest of the non-party 1. Therefore, since the defendant received the entire repayment of loans of this case after the date of distribution of this case or at least the principal and interest of this case fall short of the defendant's remaining dividends, the defendant's assertion that the remaining dividends were not distributed from the above dividends distribution schedule of this case 1505 billion won.

3. Conclusion

Therefore, the plaintiff's claim of this case against the defendant is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Choi Jin-han (Presiding Judge)