배당이의
Of the part against the defendant in the judgment below, the part against the defendant is reversed, and this part of the case is remanded.
1. We examine the appeal on the part of the judgment below regarding the revocation of fraudulent act.
The Defendant appealed against the Defendant in full part of the judgment below against the Defendant, but the revocation part of the fraudulent act did not state the grounds of appeal in the petition of appeal and the appellate brief.
2. We examine the grounds of appeal on the part of the judgment of the court below regarding restitution (revision of the distribution schedule).
(1) The reasoning of the lower judgment and the record reveal the following facts.
① A debtor against the Plaintiff was completed five times from 1988 to 1994 the establishment registration of a neighboring mortgage on the instant real estate.
② On September 9, 2015, the court of execution prepared a distribution schedule that distributes KRW 40,970,140 to the Defendant, upon the Defendant’s request, a voluntary auction procedure was commenced regarding the instant real estate.
③ On the date of distribution of the above auction procedure, the Plaintiff, on the ground that “the Defendant’s respective secured claims secured by collateral have already been completed,” raised an objection against the total amount of the dividends of the Defendant, and filed a request for correction of the distribution schedule accordingly.
④ After that, the Plaintiff sought revocation of the said act by asserting that “a form in excess of the obligation B prepared a confirmation letter to the effect that he/she would repay his/her obligation to the Defendant on March 7, 2016 constitutes a fraudulent act.” In addition, the Plaintiff filed the instant preliminary claim seeking rectification of the distribution schedule with the purport that “the Defendant’s amount of dividends should be zero won and the said amount of dividends should be distributed to the Plaintiff.”
⑤ In accordance with the instant conjunctive claim, the lower court determined that “B’s act of preparing and preparing a written confirmation as above at the time when the extinctive prescription of each of the instant secured claims has expired, constitutes a fraudulent act as waiver of extinctive prescription benefits,” and sentenced the said act to revise the distribution schedule as above.
(2) The lower court’s judgment on March 2016.