공탁금출급청구권 확인의 소
1. The plaintiff's lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
1. Basic facts
A. In the instant court’s auction of real estate B, this Court, on May 12, 2015, drafted a distribution schedule that distributes KRW 13,725,019 to a small lessee C, who is a person holding provisional attachment rights, as the second and sixth order, the said court changed the list of distribution of KRW 5,80,000,00, and the third and sixth order to a single lessee C. hereinafter “non-party company”).
B. On August 12, 2016, C filed a lawsuit of demurrer against the non-party company, etc., and rendered a judgment that “13,725,019 won of the dividend amount of the non-party company among the above distribution schedule is KRW 13,489,512, and C’s dividend amount is KRW 5,80,000,000, KRW 6,635,848,” and the above judgment became final and conclusive.
However, C did not submit to the executing court a document evidencing that the said lawsuit of demurrer against the distribution was filed.
C. On July 28, 2015, the executing court deposited the amount of dividends against the non-party company on the ground that the preserved claim for provisional seizure was not confirmed.
[Ground of recognition] Evidence No. 3, Evidence No. 1, and the purport of the whole pleading
2. The Plaintiff asserts that C received an excessive dividend return claim from the non-party company, and seeks confirmation that the claim for deposit withdrawal against the non-party company for an excessive dividend amounting to KRW 299,507, such as the excessive dividend amount of the non-party company
A lawsuit for confirmation is allowed when there is infeasible danger in the Plaintiff’s rights or legal status and obtaining a judgment of confirmation is the most effective and appropriate means to resolve the dispute.
A person who intends to request the withdrawal of a deposit shall submit a document evidencing that he/she has the right to claim the withdrawal, that is, a document evidencing that he/she is the person to be deposited (Article 33 subparagraph 2 of the Deposit Rule), and that who is the person to be deposited is determined formally by the statement of the deposit. Therefore, even if it is a creditor under substantive law, it is not designated as the person to