배당이의
1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The Plaintiff, on November 11, 2015, filed the instant lawsuit on November 17, 2015, on the date of distribution of the auction procedure for the auction of the real estate deposit C with the Changwon District Court through the Changwon District Court (hereinafter “instant real estate”) with respect to the amount of KRW 74,241,937, in subrogation of D, who is the debtor, against the Defendant, and filed the instant lawsuit on November 17, 2015.
In other words, the lawsuit of this case is the plaintiff's subrogation lawsuit.
[Ground of recognition] A2-4, 6, 10 evidence, and the purport of the whole pleading (whether there is a preserved claim) in a creditor subrogation lawsuit, the existence of a preserved claim constitutes a matter to be examined ex officio as a litigation requirement by the court.
(Supreme Court Decision 2009Da3234 Decided April 23, 2009). The Plaintiff asserts that the obligor D has a claim of KRW 418,216,395 against the obligor.
Specifically, on July 19, 2013, the Plaintiff entered into a sales contract with D, F, and G (hereinafter “D, etc.”) to purchase various real estate (land 6 parcels, buildings 3 units) and landscape facilities including the instant real estate in KRW 2.8 billion. Since the Plaintiff’s obligation to register ownership transfer of part of the real estate for sale was impossible due to reasons attributable to D, etc., D, etc., D, etc. is obligated to pay the Plaintiff KRW 418,216,395 in total, including restitution of the estimated amount of damages, repair expenses incurred by the Plaintiff, etc., and restitution of the non-performance portion or unjust enrichment of KRW 124,203,50,000, including restitution of the non-performance portion, and restitution of the non-performance portion,
Claims against D, etc. asserted by the plaintiff are claims for the preservation of creditor subrogation lawsuit.
In this regard, the plaintiff filed a lawsuit against the seller, such as D, in the Changwon District Court No. 2015Gahap11447.
However, on December 22, 2016, the above court rendered a judgment dismissing all of the plaintiff's claims.
D It cannot be deemed that the obligation to transfer the ownership of a part of real estate has become impossible due to a cause attributable to D, and a sales contract for an impossible real estate has been made.