배당이의
The judgment of the court of first instance is reversed and revoked.
The instant lawsuit is dismissed.
The plaintiff's total costs of litigation.
Judgment ex officio is made.
1. In case where the debtor raises an objection against the distribution schedule prepared in the procedures for compulsory auction on immovables, the debtor who has raised an objection against the creditor who has not an executory exemplification shall file a lawsuit of demurrer against the distribution, and the debtor who has raised an objection against the creditor who has an executory exemplification against the creditor who has an executory exemplification shall file a lawsuit
(1) A debtor, who has an executive title, has raised an objection to a creditor who has an executive title, shall submit the evidentiary documents of the filing of the claim objection and the authentic copy of the judgment on the suspension of execution based on the said lawsuit to the executing court within one week from the date of distribution, and if the debtor fails to submit either of them, the executing court shall make the distribution in accordance with the original distribution schedule to the creditor, regardless of whether the debtor has filed a lawsuit of objection within the said period and received the judgment on the suspension of execution accordingly.
(2) On May 26, 2011, according to the reasoning of the lower judgment and the record, the Defendant applied for a compulsory auction on the instant apartment owned by the Plaintiff on the basis of a notarial deed, an executory title, and the procedure commenced. As the enforcement court prepared a distribution schedule with the content of distributing the amount indicated in the judgment to the Defendant at the end of the above auction procedure, the Plaintiff appeared on the date of distribution and raised an objection against the entire amount of distribution, and thereafter filed a lawsuit of demurrer against the distribution of the instant apartment.
Examining the above facts in light of the legal principles as seen earlier, the Plaintiff filed a lawsuit of demurrer against the Defendant, even though it did not object to the distribution against the Defendant, who is a creditor with an executory exemplification as the obligor of the procedure for compulsory auction of this case, and accordingly, filed a lawsuit of demurrer against the distribution.