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(영문) 부산지방법원 2013. 08. 14. 선고 2012가단97051 판결

채권자가 개별 물건에 대하여 전액 배당을 받았다면 공동담보권자가 아닌 이상 추가로 배당받을 권리는 없음[국승]

Title

If a creditor has received a full distribution of individual goods, he/she shall not be entitled to an additional distribution unless the joint security holder is a joint security holder.

Summary

Where several real estate are distributed at the same time, even if a comprehensive collateral security is established, a creditor who receives the total amount of dividends for an individual real estate shall not have the right to receive additional dividends for other goods, unless the joint collateral security holder

Cases

2012 Single 97051 Demurrer against the distribution

Plaintiff

AAA 14th Asset Securitization Specialized Company

Defendant

1. Korea (Jurisdiction: ○○ Tax Office); 2. Busan Metropolitan City ○-gu;

Conclusion of Pleadings

June 26, 2013

Imposition of Judgment

August 14, 2013

Text

1. The plaintiff's claim against the defendants is dismissed.

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

Cheong-gu Office

With respect to the auction case of the real estate rent in Busan District Court 000 Ma0000, which was prepared by the above court on November 15, 2012, the dividend OOOOOOOOOOOO on the defendant's Republic of Korea (the defendant's jurisdiction, hereinafter referred to as "the defendant's tax office") shall be corrected as OOOOOO, the dividend OOOOOOOO on the defendant's Busan Busan Metropolitan City ○○○ (hereinafter referred to as "the defendant's office"), the dividend amount against the plaintiff shall be distributed to OOOOO, respectively. The reasons therefor are as follows:

1. Basic facts

"A. On August 6, 2007, CCC bank entered into a separate mortgage agreement with BB to comprehensively secure all the present and future debts owed by CCC bank within the scope of the maximum debt amount. On the same day, CCC bank entered into the auction procedure (hereinafter referred to as "the auction procedure") with respect to each of the instant buildings (hereinafter collectively referred to as "the instant building") with respect to OO-Gu No. 177-1 B B B B B B B, and the amount of KRW 101, 501, 1201, 1401, 1401, and 1401 (hereinafter referred to as "the instant building"). The Plaintiff was subject to the attachment order with respect to the instant building at issue by the Busan District Court at around 000,000, and the auction procedure (hereinafter referred to as "the auction procedure of this case"), among the auction procedure of this case, the Plaintiff was subject to the attachment order with respect to each of the above O-O co-ownership's dividends claim.

D. Specific dividends under each subparagraph of the instant buildings are set out in the following table:

See Table 3 of the Court Decision

E. The Plaintiff, who appeared on the date of distribution, stated each objection against OO members among the total amount of dividends on Defendant ○○ Tax Office and the dividends on Defendant ○○ Office, and filed a lawsuit of demurrer against the instant objection against the distribution on November 21, 2012.

[Ground of recognition] Facts without dispute, Gap 1 through 3, 7, 8 (including paper numbers; hereinafter the same shall apply), Eul 1 through 3, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The Plaintiff, as a joint security holder for the entire building of this case, has the right to receive dividends from the Plaintiff’s entire amount of the claim, and the entire amount of the dividend of Defendant ○○ Tax Office and the remainder of the dividend of Defendant ○○○○ Office, excluding the pertinent tax, shall not take priority over the above right to collateral security. Therefore, the Plaintiff should receive dividends from the

B. Determination

Of the total dividend amount of Defendant ○○ Tax Office and the dividend amount of Defendant ○○ Office, the part excluded from the pertinent tax is limited to only 501 and 1401 among the instant building. As seen earlier, the Plaintiff was paid the total amount of the claims reported regarding the above 501 and 1401, and it is insufficient to recognize that the evidence submitted by the Plaintiff alone has the right to receive additional dividends as a joint security holder for the entire building of this case, and there is no other evidence to acknowledge this otherwise. Accordingly, the Plaintiff’s claim against the Defendants on the premise that the Plaintiff had the right to receive additional dividends is without merit.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed as it is without merit. It is so decided as per Disposition.