배당이의
1. Revocation of the first instance judgment.
2. As to the application case for a discretionary auction of real estate in Incheon District Court E (F).
1. The reasoning for the court’s explanation on this part of the facts is that of the pertinent part of the judgment of the court of first instance, and thus, they are cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.
2. The assertion and judgment
A. In light of the Plaintiff’s assertion, when the Defendant anticipated a request for auction of the instant real estate, the Defendant is the most lessee who entered into a false rental agreement in collusion with G, the owner of the instant real estate, in order to avoid dividend
Therefore, it is illegal that enforcement court should consider the defendant as a small lessee and distribute 25,000,000 won to the defendant.
The instant dividend table should be corrected to delete the dividend amount to the Defendant and distribute it to the Plaintiff.
Preliminaryly, the instant lease agreement entered into with the Defendant in excess of the obligation of G constitutes a fraudulent act, and thus, it should be revoked, and the instant distribution schedule should be revised to distribute the amount of dividends to the Defendant to the Plaintiff.
B. Determination 1) The burden of proving the grounds for objection to a distribution in a lawsuit of demurrer against distribution also complies with the principle of allocation of the burden of proof in general civil procedure. In the event that the plaintiff asserts that the defendant's claim has not been constituted, the defendant is liable to prove the facts of the cause of the claim, and where the plaintiff asserts that the claim has been invalidated as a false declaration of agreement or extinguished by repayment, the plaintiff is liable to prove the facts constituting the grounds for disability or extinguishment (see, e.g., Supreme Court Decision 2005Da39617, Jul. 12, 2007). Provided, it is reasonable to consider such circumstances in determining whether the defendant's assertion and the content of evidence that the claim has been established, and where it is difficult to believe it as they are contrary to logical and empirical rules (see, e.g., Supreme Court Decision 2008Da27998, Jul. 24, 2008).