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(영문) 서울중앙지방법원 2018.07.18 2017가합527969

배당이의

Text

1. The plaintiff's claim is dismissed.

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

Reasons

1. Basic facts

A. In the Seoul Special Metropolitan City Central District Court B real estate auction (hereinafter “instant auction procedure”) with respect to E apartment on the land outside the Gwanak-gu Seoul Special Metropolitan City D and 11 lots, the Defendant filed a report on the right and a demand for distribution with the executing court by asserting that the loan claim against the C Rebuilding Housing Association is a person entitled to provisional seizure with the preserved claim.

B. On April 14, 2017, a court of execution prepared and presented a distribution schedule that distributes KRW 1,755,293,906 to the Plaintiff, the person holding the provisional seizure right, and KRW 1,581,06,513 to the Defendant (hereinafter “instant distribution schedule”), which is the date of distribution, the Plaintiff stated an objection against the total amount of dividends to the Defendant.

[Ground of recognition] Facts without dispute, entry of Gap 1 and 2 evidence, purport of the whole pleadings

2. The plaintiff asserts that since the defendant did not have any claim against the C-building housing association, the amount of dividends against the defendant should be deleted and the above amount of dividends should be distributed to the plaintiff, the plaintiff should correct the distribution schedule of this case.

On the other hand, in a lawsuit of demurrer against distribution, the plaintiff has the burden of proving the existence of the right to receive dividend.

However, each statement in Gap evidence Nos. 1 through 3 alone is insufficient to recognize that the plaintiff has a claim against the C-building Housing Association, and there is no other evidence to acknowledge it (the plaintiff had a claim against the C-building Housing Association under the Seoul Central District Court 2015Gahap51823, which appears to be the principal lawsuit, claiming the return of unjust enrichment equivalent to KRW 5,263,158,96,00 around 5,263,158,96, in advance, and the return of unjust enrichment amounting to KRW 1,849,69,121 in advance, which was sentenced on October 7, 2016, but it appears that the plaintiff appealed as Seoul High Court 2016Na20817 but was sentenced to the dismissal of appeal on June 1, 2018).