[2] The method of conclusion where a debtor raises an objection against a creditor's claim without executory exemplification in the procedures for distributing dividends

[2] In a case where the debtor raised an objection against the mortgagee with respect to the distribution procedure of the auction filed by the mortgagee, the debtor who filed an objection pursuant to Articles 658 and 592 of the Civil Procedure Act shall file a lawsuit of demurrer against the distribution, and the mortgagee shall not file a lawsuit of demurrer against the distribution under Article 606 (3) of the Civil Procedure Act.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of appeal, 70% of the costs of appeal shall be borne by the Defendant, and 30% shall be borne by the Plaintiff.

It is confirmed that the right to claim payment of KRW 1,256,673,349 for the deposited money in the order is the plaintiff.

2. Purport of appeal

The judgment below is revoked. The plaintiff's claim is dismissed.

A.I made a contract with J on September 9, 1992 for the construction of the building site Case Case Case Case Case Case Case Case Case Case Case Case Case Case Case Case Case Case Case Case Case Case Case Case Case Case Case Case Case Case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case case

B. On April 26, 1995, the Incheon District Court auction procedure was in progress with respect to the instant land and building upon the application for auction based on the instant right to collateral security. On February 26, 1996, the joint mortgagee of the instant right to collateral security, I,L, andG transferred the amount of KRW 1.4 billion to the Plaintiff, a creditor of I as to the instant right to collateral security and the secured claim (Evidence A6-3) with the consent of J as the debtor (Evidence A). The Plaintiff completed the registration of transfer of the instant right to collateral security on February 27, 1996.

C. Upon taking over the instant right to collateral security, the Plaintiff agreed to obtain the instant land and building from I and to repay I’s obligations after receiving the successful bid. If the Plaintiff fails to obtain the successful bid, the Plaintiff had to transfer the instant right to collateral security to I,L andG (No. 3-1).

Accordingly, on February 24, 1996, the Plaintiff drafted and delivered to L a notarial deed of promissory note amounting to KRW 2.50 million (Evidence A9), on February 26, 1996, the Plaintiff agreed to pay the amount of KRW 200 million to G, and to pay the amount of KRW 400 million to N (Evidence B-2 and 3). On February 27, 1996, the Plaintiff created a right to collateral security of KRW 250 million in the name of M in the name of the Incheon Seo-gu P Site and the ground building owned by the Plaintiff’s father, Incheon P, the Plaintiff’s father, and the Plaintiff drafted and delivered a performance certificate of promissory note amounting to KRW 2.50 million to M on July 10, 1996 (Evidence A-1 and 3-11-2).

D. On July 22, 1996, when the plaintiff was not successful in the land and building of this case, he transferred the right to collateral of this case and the secured debt of this case to the defendant on July 22, 1996 (Evidence No. 5) and the registration of transfer of the right to collateral of this case on July 24, 1996 (However, the registration of change of the right to collateral of this case was completed (Evidence No. 1-1) (Evidence No. 1-1) and notified the J by content-proof mail on November 15, 1996 (Evidence No. 8-1 and 2) (Evidence No. 8-1).

After the registration of transfer of the right to collateral security in this case was completed, the Defendant submitted a claim statement of KRW 1.4 billion to the auction court as the right to collateral security in this case, and repaid KRW 453 billion, such as I’s obligation for construction price as shown in the attached Table I.

본문내 포함된 표 별표 Ⅰ. 피고의 대위변제 내역 구분 변제일 채권자 변제액 증거 ㉮ 1996. 8. 13. 성두설비 9천만 원 을 제17호증 ㉯ 1996. 10. 23. 김용대 6,300만 원 을 제15호증 ㉰ 1996. 11. 10. N 7천만 원 을 제13호증 ㉱ 1997. 4. 24. E 1천만 원 을 제11호증 ㉲ 1997. 8. 21. 김병인 8천만 원 을 제14호증 ㉳ 1997. 10. 7. 김병인(주)하영 9천만 원 을 제16호증 ㉴ 1998. 4. 21. G 5천만 원 을 제12호증

E. On September 7, 1996, the land and the buildings of this case were auctioned to Q Q (transfer of ownership on November 25, 1996), the remainder was awarded each of them to the Defendant (transfer of ownership on November 23, 1996), and on November 15, 1996, the Incheon District Court prepared a distribution schedule to distribute the amount of KRW 1,256,673,349 to the Defendant on November 15, 1996 (Evidence 1) (Evidence 1), which was the date of distribution, to the Defendant (Evidence 1), to which the Incheon District Court 96Ra1843, and to which the portion was attached [Attachment Ⅱ] with respect to the dividend of this case as to the right to collateral security [Attachment Ⅱ], < Amended by Presidential Decree No. 15096, Nov. 25, 1996; Presidential Decree No. 18170, Nov. 36, 197>

Table II included in the main sentence. On July 10, 1995, attached Table II, the date of service of the third debtor to the creditor who was classified into the seizure and provisional seizure of the dividends of this case (deposit) on the third party debtor (the date of service of the third party debtor) on the amount of the dividends of 1.5 billion won of the Republic of Korea dividends of 1.5 billion won of the Republic of Korea dividends of 1.5 billion won of the Republic of Korea, 4.5 billion won of the provisional attachment E provisional attachment, < Amended by Presidential Decree No. 9677, Mar. 3, 1996; Presidential Decree No. 96750, Oct. 26, 1996; Presidential Decree No. 196758, Nov. 5, 196; Presidential Decree No. 18797, Nov. 28, 1996; Presidential Decree No. 18717, Mar. 19, 207>

F. The J filed a lawsuit of demurrer against the Defendant, Incheon District Court 96Gahap18843. However, on April 23, 1998, in the event that a debtor raised an objection against the right to collateral security without a title of debt as Seoul High Court 97Na38802, the mortgagee of the right to collateral security has filed a lawsuit of confirmation of the claim and the debtor has not filed a lawsuit of demurrer against the distribution. On August 25, 1998, the court dismissed the lawsuit of demurrer against the Defendant on the ground that the debtor did not have to file a lawsuit of demurrer against the distribution (Evidence No. 18 evidence No. 6 of the A). Accordingly, even though the Defendant filed a lawsuit of confirmation of the claim against J, it was dismissed by the Incheon District Court 99Na25176, and remanded to Incheon District Court 200Ka542 (Evidence No. 19).

G. On May 12, 1998, the Plaintiff received a provisional disposition on the Defendant’s right to claim payment of deposit money (Evidence 16-28 of the A), and on June 2, 1998, S and I filed a complaint with the Incheon Western Police Station (Evidence 16-31 of the A), but the Incheon Western District Prosecutors’ Office (No. 98 type 101970 of the A), issued a disposition against the Plaintiff on February 26, 1999 against the Plaintiff, for the reason that the Plaintiff obstructed the Defendant from receiving the successful bid price (Evidence 16-31 of the A), on the ground that the Plaintiff used a deceptive scheme, thereby obstructing the Defendant from receiving the successful bid price (Evidence 16-1 of the A).

H. On August 14, 200, the Plaintiff and the Defendant transferred the right to the instant deposit to the Defendant by content-certified mail, and notified the Plaintiff that the Plaintiff transferred the right to the instant deposit to the public official deposit in the Incheon District Court deposit, and that the Defendant transferred the instant deposit to the Defendant on August 14, 2000 (Evidence 34-2 and 3 of the instant appeal to the Defendant, which was paid KRW 300 million by T lawyer, and that the Defendant withdrawn the instant appeal and agreed to resolve the attachment of G, etc. (Evidence 34-2 and 3 of the A). Accordingly, on August 14, 200, the Defendant,U, F, andG transferred the right to the Plaintiff on August 14, 200 to the public official in charge of deposit in the Incheon District Court deposit, and that the Plaintiff transferred the right to the instant deposit to the Plaintiff on August 31, 2003 (Evidence 30,000,000 won and the Plaintiff’s deposit KRW 3030,2130,37,00,00.37.37.

(1) On September 8, 1994, KRW 3 billion (I,L andG 1.2), KRW 150 million out of I's dividends, KRW 1.5 million (3) on July 10, 1995, KRW 1.5 million, KRW 6G 196.3 G 1.6G 196, KRW 6G 196.6G 196.6G 196.6G 196.6G 196.6G 196.6G 196.6G 196.6G 196.6G 297.6G 196.6G 196.6G 196.6G 297.6G 196.6G 196.6G 196.6G 196.6G 196

2. Determination:

The right relationship on the mortgage of this case and its dividends shall be arranged as specified in attached Table 3.

The instant mortgage and the secured claim KRW 1.4 billion were transferred to the Plaintiff as shown in attached Table 3 [Attachment III] (3).

Since the Plaintiff transferred the instant collateral and secured claim to the Defendant as shown in attached Table III [5] and completed the registration of transfer of the right to collateral security, the transfer of the instant collateral security was not effective, but it is reasonable to deem that the secured claim and the right to claim dividend of the instant collateral security have been transferred to the Defendant.

It is insufficient to recognize that the Plaintiff’s above transfer to the Defendant was due to the Defendant’s fraud only with the entries of evidence Nos. 6-4, 5, 27, and 28 and testimony of witness V.

However, prior to the Plaintiff’s transfer of the instant right to collateral security, as shown in R [Attachment III](2), the Plaintiff renounced the right to KRW 1.5 million out of the dividends on the instant right to collateral security on July 20, 1996, but W was seized on May 28, 1996, with respect to KRW 33 million out of the total amount of R, and thus, the amount of KRW 33 million was reverted to W, and the remainder of KRW 1,23,673,349 was transferred to the Defendant.

Although the auction court deposited the dividends on the instant right to collateral security against the Defendant, who is the title holder of the right to collateral security, it is lawful to deposit the dividends on the instant right to collateral security with the Defendant. In addition, since the debtor J, which is the title holder of the right to collateral security, has dismissed the lawsuit of demurrer against the distribution of the instant right to collateral security, the dividends on the instant right to collateral security became final and conclusive as KRW 1,256,673,349 in accordance with the distribution schedule. In the case where the debtor raised an objection against the said right to collateral security in the distribution procedure of the auction filed by the right to collateral security, the debtor files a lawsuit of demurrer against the distribution pursuant to Articles 658 and 592 of the Civil Procedure Act, and the mortgagee is not required to file a lawsuit of confirmation of the claim pursuant to Article 606(3) of the Civil Procedure Act. Article 606(2) and (3) of the Civil Procedure Act applies only to the case where the creditor without an executory copy among the right to demand distribution as provided for in Article 605 of the Civil Procedure Act.

However, on August 14, 200, as shown in attached Table Ⅲ), the Defendant and UF/G transferred KRW 1,106,673,349 out of the instant dividend amount to the Plaintiff and notified the public official in charge of deposit by mail with a fixed date. As such, the claim for payment of KRW 1,106,673,349 out of the instant dividend amount was transferred to the Plaintiff. Of the instant dividend amount, 60 million out of the instant dividend amount was transferred to U.S. and the Plaintiff was transferred to the Plaintiff. As the attachment and assignment order of FF/G overlaps with the instant provisional attachment, the attachment and assignment order of F/G only takes effect without taking effect. Accordingly, the remainder amount of KRW 506,673,349 was transferred from the Defendant to the Plaintiff in the entirety competition under Article 568-2 of the Civil Procedure Act.

Although the defendant, UF, andG notified the deposited public official of March 27, 2001 to cancel the assignment of claims and the notification of transfer in August 14, 2000, it is not effective without the consent of the plaintiff who is the transferee.

3. Conclusion

Of the instant deposit money, the Plaintiff is entitled to claim for payment of KRW 1,106,673,349, but the attachment of KRW 506,673,349 is competition between E’s provisional attachment and F/G attachment.

The plaintiff's claim of this case was changed to exchange in the appellate court only to the extent recognized above, and the remaining claims are without merit.

Judges Cho Jae-dae (Presiding Judge)