배당이의
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
1. Basic facts
A. On November 24, 2016, the Plaintiff loaned KRW 110,000,00 to Nonparty E, and completed the registration of the establishment of a mortgage on the building indicated in the separate sheet owned by E on November 29, 2016 (hereinafter “instant building”) with the Cheongju District Court No. 54584, the maximum debt amount of KRW 151,20,000,000, the debtor, the mortgagee, and the Plaintiff, the mortgagee.
B. On December 27, 2018, the Plaintiff filed an application for the auction of real estate on the instant building with the Chungcheong District Court D, Chungcheong District Court D, and the Defendant submitted the application for the auction of real estate on January 21, 2019 at the above auction procedure (hereinafter “instant auction procedure”) and around January 21, 2019, “the lease deposit is KRW 60,303,90”, “from April 30, 2016 to April 29, 2018,” “from April 30, 2016 to April 29, 2018”, “the date of transfer is April 28, 2016”, and “the date of May 9, 2016” respectively.
C. On September 4, 2019, in the instant auction procedure, the auction court: (a) drafted a distribution schedule of KRW 60,000,000 on the ground that the Defendant, as a lessee with the fixed date, is a person with the second priority distribution right; and (b) each distribution of KRW 42,393,166 to the Plaintiff (hereinafter “instant distribution schedule”).
The Plaintiff appeared on the date of distribution, and raised an objection against the Defendant’s dividend amounting to KRW 60,00,000, and filed a lawsuit of demurrer against the distribution to the instant court on September 9, 2019.
[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 6, purport of the whole pleadings
2. Determination as to the cause of action
A. The auction court of the Plaintiff’s assertion: (a) recognized the Defendant as the lessee at the fixed date and distributed 60,000,000 won to the Defendant; (b) however, at the time of the Plaintiff’s lending of the instant building as collateral, the Plaintiff did not enter the Defendant in the details of perusal of the household moving into the instant building; and (c) Nonparty F was living free of charge in the Defendant’s relative; (d) thus, the amount of dividends to the Defendant out of the instant dividend table should be deleted;