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(영문) 서울고등법원 2018.05.30 2017나28643

부당이득금

Text

1. The lawsuit of this case is dismissed in exchange for another court.

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

Reasons

1. Basic facts

A. Of the Gangseo-gu Seoul Metropolitan Government 363.7 square meters (hereinafter “instant land”), 264.5 percent shares (hereinafter “instant shares”) owned D, among D-owned land: (a) KRW 200 million with the maximum debt amount on December 3, 2014; (b) the registration of creation of a neighboring mortgage, the debtor E; (c) KRW 325 million with the maximum debt amount on February 11, 2015; and (d) the registration of creation of a neighboring mortgage, the debtor D; and (e) the debtor; and (e) the registration of creation of a neighboring mortgage (hereinafter “registration of creation of a neighboring mortgage”) with respect to the instant shares commenced on July 2, 2013 at the request of another mortgagee; and (e) voluntary auction procedure (Seoul Southern District Court I; hereinafter “instant auction procedure”) sold the instant shares to the Plaintiff; and (e) the registration of the transfer of the ownership due to the sale of the instant shares under the name of the Plaintiff on August 28, 2015.

B. According to the instant auction procedure, among the amount to be actually distributed on the date of distribution as of October 14, 2015, the distribution schedule was formulated in order of 59,524,000 won (the amount of claims of the plaintiff 59,524,000 won) among the amount to be actually distributed on the date of distribution as of October 14, 2015, to the creditors, including the mortgagee 59,524,000 won (the amount of claims of the plaintiff 59,524,000 won) and the Defendant, the mortgagee 9,50,000 won (the amount of claims of the defendant 25,50,000 won) in the order of 90,000 won (the amount of claims of the defendant 25,000,000 won), and the Defendant received the above surplus on behalf of D.

C. Meanwhile, on the other hand, on December 16, 2014, 2016, 26 units 26 units D, among the aggregate buildings on the instant land (hereinafter “each unit of this case”, and the individual units are indicated as units of housing) owned by D, the registration of the establishment of a neighboring mortgage, which is the debtor, E, and the plaintiff of the right to collateral security, was completed (the registration of ownership transfer was completed in the name of J on October 28, 2015 with respect to ten units of housing units). On the other hand, on September 30, 2015, the plaintiff applied for a voluntary auction on the 101 units and 405 units of the aggregate building on the instant land, the decision to commence voluntary auction (Seoul Southern District Court K) was rendered on September 30, 2015.

The plaintiff on October 15, 2015.