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

A. The Plaintiff received KRW 35,933,958 according to the distribution schedule prepared on August 14, 2019 (hereinafter “instant distribution schedule”) with respect to the case of Gwangju District Court F, upon receiving a decision of seizure based on the authentic deed No. 2018 No. 748 against D Co., Ltd. (hereinafter “Nonindicted Company”).

B. On the other hand, on November 6, 2018, Defendant B received KRW 9,451,852 in accordance with the instant distribution schedule with the title of execution of the Notarial Deed (No. 2018No. 1287) drafted between Nonparty Company and Nonparty Company as the title of execution, and Defendant C received KRW 6,298,671 in accordance with the instant distribution schedule with the title of execution of the No. 1290 (No. 1290) drafted between Nonparty Company and Nonparty Company on November 16, 2018.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3, purport of the whole pleadings

2. The plaintiff asserted by the parties that the non-party company made a false notarial deed to the defendants, and the defendants received dividends based on the notarial deed made in falsity. Thus, the defendants eventually asserted that the amount distributed to the defendants took profits without legal grounds, and that the plaintiff did not receive dividends to the above amount.

The defendants asserted that since they actually lent money to the non-party company, they did not receive dividends based on false notarial deeds in the dividend procedure.

3. Determination

A. The burden of proof in a lawsuit of demurrer against distribution is in accordance with the principle of allocation of the burden of proof in general civil procedure. Therefore, in a case where the plaintiff asserts that the claims of the defendants were not constituted, the defendants are liable to prove the facts of the cause of the claims, and in a case where the plaintiff claims that the claims were invalid as a false declaration of conspiracy or extinguished by repayment, the plaintiff is liable to prove the facts

Supreme Court Decision 2005Da39617 Decided July 12, 2007