November 21, 2017

2. Sub-si (name omitted), 1406, 1701 (○○ Dong and △△ apartment) will be put at auction to distribute to the Plaintiff the remaining money obtained by deducting the auction cost from the proceeds thereof at the rate of 1/7 and 6/7 to the Defendant.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

According to the purport of Gap evidence Nos. 2 and 3, the Korea Asset Management Corporation transferred to the plaintiff the claims based on the payment order of the acquisition amount (6,399,954 won and damages for delay from June 26, 1998 to 5,492,428 won) against non-party 1 (hereinafter "the claims subject to preservation of this case"), and notified the non-party 1 of the fact that around that time, the fact that the non-party 1 was notified of the fact, 1/7 shares out of the order of the apartment (hereinafter "the apartment of this case") on November 16, 2016, the ownership transfer registration was completed on the ground of non-party 1's revocation of the fraudulent act on August 17, 2015, the remainder of the claims against the non-party 6/7 of this case was registered, and the fact that the non-party 1 was not entitled to the claim against the non-party 1, a divided property of this case.

According to the above facts, the plaintiff may request the defendant to divide the apartment of this case, which is jointly owned, in subrogation of the non-party 1 to preserve the preserved claim of this case, in the absence of special circumstances.

Furthermore, the apartment of this case, which is an aggregate building, seems to be very difficult to divide the apartment of this case in kind with the share, even if it is possible to divide it in kind, and even if it is possible to divide in kind, the value of each part divided due to it is considerably lowered, and there is a concern that the relationship of rights between interested parties is complicated due to the right of collateral security (the maximum bond amount KRW 348 million in total, hereinafter the "mortgage of this case") of the National Agricultural Cooperative Federation with respect to the apartment of this case recognized by the statement of No. 3, the apartment of this case constitutes a case where it is difficult or inappropriate to divide in kind in kind, even if it is impossible in the partition of co-owned property in the trial, or possible in form, if the price is considerably reduced due to it, the auction for the co-owned property should be ordered, and the sale price of the apartment of this case shall be referred to as the sale price of this case by the plaintiff and the defendant, which shall be included in the auction of this case's right to receive the remainder of the apartment of this case.

2. Judgment on the defendant's assertion

A. First, the defendant asserts that regarding the apartment of this case, which is inherited property, the defendant had an agreement on the division of inherited property to bear the principal and interest equivalent to the share of this case, among the debts for which the defendant had assumed the right to collateral of this case as collateral, instead of having the share of this case, the defendant continued to bear the inheritance debts of the non-party 1 as stipulated in the above agreement on the division of inherited property. Accordingly, the non-party 1, the debtor, is the case where he exercises his right to share of this case, and thus, the plaintiff

However, the defendant does not dispute that the agreement on the division of inherited property has been terminated due to the revocation of the agreement on the division of inherited property by the lawsuit filed by the Korea Credit Guarantee Fund for the revocation of fraudulent act filed by the Korea Credit Guarantee Fund. The shares of this case recovered in the future of the non-party 1, the debtor, due to the revocation of the fraudulent act by the Korea Credit Guarantee Fund and the claim for restitution to its original state, are treated as the debtor's responsible property in relation to other creditors, such as the Korea Credit Guarantee Fund and the plaintiff (the revocation and restitution of the fraudulent act is effective for all creditors). Since the debtor, who is the debtor, does not directly acquire any right to the property, the defendant does not have any right to the property. Thus, as alleged by the defendant, it cannot be viewed as the exercise of the right to the shares of this case by the non-party 1, who is the debtor, according to the agreement on the

B. Next, the Defendant asserts that the Plaintiff’s claim for the division of the entire apartment of this case, which can only secure the validity and adequate claim even with the compulsory execution against the instant share, is unlawful because it lacks the preservation necessity required for the exercise of the right of subrogation, or it is an unreasonable interference with Nonparty 1, the debtor, regarding the act of free management of property.

However, according to the overall purport of evidence Nos. 3, 5, and 6 as to the share of this case, the compulsory auction procedure (Seoul District Court Branch Decision No. 2016,54686) commenced by the Korea Credit Guarantee Fund upon its application. The above auction court notified the Korea Credit Guarantee Fund that the minimum sale price of the share of this case does not reach KRW 296,297,784, which takes precedence over the creditor's claim of the creditor, and decided to dismiss the above request for auction. Even in this case where there is no evidence to acknowledge that there was any change in circumstances after the above dismissal, it cannot be seen that the plaintiff's act of exercising the above right of auction is identical to the above request for auction of this case, and thus, it cannot be seen that the plaintiff's exercise of the right of auction of this case constitutes an abuse of rights by subrogation of the debtor's right to claim compensation of this case x 700 won, which is an appropriate means to secure the right of auction of this case.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, so it is revoked, and it is so decided as per Disposition with the order to order the division as above.

Judges Kim Jong-sung (Presiding Judge)