No claim for delivery made after the ownership has been transferred shall be effective.

If a claim for delivery was made to collect a tax claim but the ownership was transferred after the transfer, the claim for delivery to the former owner shall not be valid.

2015 Gohap65045 Demurrer against distribution

○○ Holdings Corporation

Republic of Korea 2 others

March 24, 2016

April 28, 2016

1. Of the distribution schedule prepared by the said court on May 29, 2015 with respect to a compulsory auction case of Suwon District Court 2013Taeng 7409, the said court:

A. The amount of dividends against Defendant ○○○○○○ was deleted from KRW 243,865,026 and KRW 171,058,430, and distributed KRW 414,923,456 to the Plaintiff;

B. The amount of dividends to Defendant ○○ shall be deleted from KRW 2,265,503,114, and the dividends shall be distributed in proportion to the order of claims and the amount of claims of each creditor.

2. The plaintiff's remaining claims against the defendant private ○ are dismissed.

3. The costs of lawsuit shall be borne by the Defendants.

Cheong-gu Office

On May 29, 2015, concerning the compulsory auction case of Suwon District Court 2013 Other real estate ○○○○○○, the above court.

Of the dividend table prepared by Defendant ○○○ City, the amount of dividends of KRW 243,865,026, Defendant Republic of Korea (○○ Tax Office)

u) delete the dividend amount of KRW 171,058,430 against Defendant ○○ and KRW 2,265,503,114 against Defendant ○○, and correct the dividend amount of the Plaintiff to KRW 2,680,426,570.

1. Basic facts

A. On December 26, 2012, 201, ○○ L&C Co., Ltd. (hereinafter referred to as “○○ L&C”) maturity to the Plaintiff respectively.

Promissory Notes with face value of 6.5 billion won and Promissory Notes with face value of 300 million won.

on the same day, the notary public of the same day shall delay the payment of each of the above bills by ○○ in ○○○.

In case of compulsory execution, a notarial deed (No. 198 of 2012, No. 197 of 2012, No. 2012, hereinafter referred to as "each notarial deed of this case") was prepared to recognize and recognize that there is no objection even if there is no objection.

B. ○○○○○○○○○-dong, ○○○○○-dong, Urban Development Project Zone, and Building 3 and 3 underground floors commercial buildings (hereinafter “instant building”) was newly constructed on the instant building on the ○○○○○-dong, ○○○○○○○○, and the ○○○, a creditor of ○○ L&C filed an application for compulsory auction against the instant building with the Suwon District Court 2013, on April 23, 2013 (hereinafter “instant procedure for compulsory auction”).

The auction procedure was commenced.

C. On June 12, 2013, when the instant auction procedure had been in progress, ○○○ and the instant building concluded a mortgage contract with Defendant ○○ and the maximum debt amount of KRW 9.1 billion on the instant building, and a mortgage contract with Defendant ○○ as the mortgagee (hereinafter “instant mortgage contract”) on the grounds thereof.

6. 13. The registration of the establishment of a mortgage in the name of Defendant ○○ as to the instant building (hereinafter “the instant building”).

The registration of establishment of political party rights was completed.

D. around 18:05 on June 17, 2013, ○○○ Trust Co., Ltd filed an application for completing the registration of ownership transfer under the name of ○○ Trust Co., Ltd. on the instant building on the ground of trust. Accordingly, the registration of ownership transfer under the name of ○ Trust Co., Ltd was completed on the same day.

E. Meanwhile, around 16:00 on June 17, 2013, the Plaintiff made a demand for distribution based on a notarial deed relating to promissory notes amounting to KRW 6.5 billion among each of the instant notarial deeds in the instant auction procedure.

F. On June 25, 2013, the head of ○○ Tax Office under the jurisdiction of the Republic of Korea filed a request for delivery at the instant auction procedure, and Defendant ○○○ filed a request for delivery at the instant auction procedure on July 1, 2013.

G. In the instant auction procedure on May 29, 2015, the court: (a) drafted a distribution schedule of KRW 2,780,630,847, which is to be distributed to the Defendant ○○○○ in the first order; (b) KRW 171,70,058,430 to the Defendant Republic of Korea (○○○ Tax Office) and KRW 145,969,120 to the Defendant ○○○○○ in the second order; and (c) KRW 100,204,277 to the ○○○ who is the applicant creditor; and KRW 97,854,206 to the Defendant ○○○, the mortgagee; and KRW 2,265,503,114 to the Defendant ○○, the mortgagee; and

H. On May 29, 2015, the Plaintiff appeared on the date of distribution, and stated an objection against the total amount of the dividend distributed by the Defendants, and filed a lawsuit of demurrer against distribution within the statutory period.

[Reasons for Recognition]

Facts without dispute, entry of Gap 1-4, 6, 7, 12 evidence (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination on the cause of the claim

A. Summary of the plaintiff's assertion

Defendant ○○ and Defendant Republic of Korea filed a claim for delivery in the instant auction procedure to collect claims, such as taxes, etc. on ○○ C&C. However, this claim was made after the ownership of the instant building was transferred to ○○ Trust Co., Ltd., and was subsequently made to the creditors of ○○ C&C, the former owner of which

The above Defendants, which are merely the Defendants, cannot receive dividends in the instant auction procedure. The Plaintiff was sentenced to a favorable judgment by filing a lawsuit for revocation of a fraudulent act against Defendant ○○. If the instant mortgage contract was revoked as it constitutes a fraudulent act, Defendant ○○ cannot receive dividends from the instant auction procedure as a mortgagee. Therefore, the amount of dividends to the Defendants out of the dividend table prepared in the instant auction procedure should be deleted, and the said dividend table should be revised by allocating it to the Plaintiff.

B. Determination

1) First, it is examined whether Defendant ○○○○○○ and Defendant Republic of Korea can receive a distribution in the instant auction procedure. When the subject matter of auction has been transferred to a third party during the auction procedure and the ownership transfer registration has been effective against the creditor requesting auction, but the other party is valid. Therefore, a demand for distribution may not be made even after the execution debtor has been transferred under the name of the transferee (see Supreme Court Decision 97Da57337, Nov. 13, 1998). The demand for delivery under Article 56 of the National Tax Collection Act was made by the tax authority to seek a distribution of the national tax in arrears after taking part in the compulsory exchange procedure, and is in the same nature as the demand for distribution in the real estate auction procedure under the Civil Procedure Act (see Supreme Court Decision 99Da22311, Nov. 27, 2001). However, as seen earlier, the claim for the transfer registration of ownership in the instant building was made under the name of Defendant 2, 2013.

Therefore, since the transfer registration of ownership transfer of ○○ Trust Co., Ltd. on the building of this case is valid against Defendant ○○ and Defendant Korea, the above Defendants cannot file a claim for the delivery with the bonds against ○○○ T&C after such transfer registration is completed, and cannot receive a distribution.Therefore, from among the distribution schedule prepared in the auction procedure of this case, the amount of distribution to Defendant ○○ City 243,86

5,026 won (=41,700 won + 145,969,120 won + 97,854,206 won) and distribution amount for Defendant Republic of Korea (○○ Tax Office) to be deleted.

2) Next, we examine whether Defendant ○○○ may receive dividends at the instant auction procedure. Comprehensively considering the purport of pleadings in evidence No. 9, 11, 15, and 16, the Plaintiff filed a lawsuit seeking revocation of fraudulent act against Defendant ○○○○ by means of Seoul Central District Court 2014Gahap28, Nov. 28, 2014, the lower court sentenced that “the instant mortgage contract is revoked.” (2) Defendant ○○ appealed appealed against this, but Defendant ○○ appealed but dismissed Defendant’s appeal with Defendant 10, 2015Na○○, the Seoul High Court 2016 (the part that was revoked by the Plaintiff’s withdrawal of the part that was subject to revocation of the instant fraudulent act among the lawsuit seeking revocation of the said fraudulent act). If it was impossible for the Plaintiff to bring a lawsuit seeking revocation of the establishment registration of mortgage within the extent of KRW 10,016, the lower court’s order to reinstate the same as that of the obligee’s claim for revocation of the establishment of mortgage was established by means of restitution.

According to Gap evidence No. 2, in the auction procedure of this case on April 30, 2015, it can be acknowledged that ○○DC purchased the building of this case and completed the registration of ownership transfer, and accordingly, the registration of creation of a mortgage of this case was cancelled on the same day. The plaintiff appeared on the date of distribution of the auction procedure of this case and stated an objection against the whole amount of dividends to Defendant ○○○, and raised an objection within the statutory period. As seen earlier, the plaintiff filed the lawsuit of this case. Thus, the amount of dividends to Defendant out of the dividend table prepared during the auction procedure of this case should be deleted.

3) We examine the scope to be corrected in the distribution schedule.

Since the lawsuit of demurrer against the distribution between ○○○○○○○○○ and the obligees who are parties to the lawsuit of demurrer against the distribution, the judgment of the lawsuit should change the distribution portion to be reverted to the creditors who are the original and the Defendant. Therefore, in a case where it is deemed that the Defendant’s claims do not exist, it is unnecessary to consider the other creditors’ claims not raised in calculating the distribution amount to be reverted to the Plaintiff (see Supreme Court Decision 2000Da41844, Feb. 9, 2001). According to the evidence evidence No. 12, the interested parties who stated an objection against the Defendant○○○○○○ and the distribution amount of the Republic of Korea against the said Defendants may be deemed to have only the Plaintiff, and accordingly, it is reasonable for the said creditors to have filed a lawsuit of demurrer against the said Defendants at the 0○○○○○○○○○○○○○○○ and the distribution amount of the dividends amount to be distributed to the Plaintiff at the same time as the above 20-mentioned creditors’ dividends amount.

3. Determination on the assertion of Defendant ○○○ City

Defendant ○○○ City asserts to the effect that ○○○○○○○ Co., Ltd. completed the registration of ownership transfer of the building of this case on the ground of the trust. This is merely a trust for management, and where any surplus remains after the completion of distribution in the auction procedure of this case, the surplus will belong to ○○○ T&C, which is an executory debtor, who is not ○○○ Trust Co., Ltd., and this will again be distributed to the creditors demanding distribution. Accordingly, Defendant ○○○○○ Co., Ltd, the creditors of ○○○○○○○ Co., Ltd, is entitled to demand a distribution and receive a distribution after the registration of ownership transfer was made in the name of ○○ Trust Co., Ltd. on the building of this case.However, the trustee has the authority to manage and dispose of the trust property as the person to whom the rights and duties of the trust property accrue (Article 31 of the Trust Act) and to conduct all acts necessary to achieve the purpose of the trust (Article 31 of the Trust Act), and the assertion that the registration of ownership transfer was completed on the building of this case is not attributable to ○○○.

4. Conclusion

The plaintiff's claim against the defendant ○○ and the defendant's Republic of Korea is justified, and the defendant is accepted.

A claim against ○○ is justified within the scope set forth above, and the remainder of the claim is accepted.

The dismissal is dismissed.