(영문) 인천지방법원 2015.04.28 2014나9960 | 리걸엔진

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(영문) 인천지방법원 2015.04.28 2014나9960

배당이의

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1. The plaintiff's appeal and the plaintiff's conjunctive claim added in the trial are dismissed, respectively.

2. After an appeal is filed.

Reasons

1. Basic facts

A. C took out a loan of KRW 105,00,000 from the Plaintiff on August 30, 201, and completed the registration of creation of a mortgage with respect to the loan of this case owned by the Plaintiff as the collateral to the Plaintiff as the collateral amount of KRW 136,50,000, the maximum debt amount of KRW 136,500.

B. On April 3, 2013, the Plaintiff filed for a voluntary auction on the basis of the foregoing right to collateral security and commenced an auction procedure (hereinafter “instant auction procedure”) with the Incheon District Court B on April 3, 2013.

C. On January 1, 2014, the auction court: (a) distributed KRW 22,00,000 to the Defendant, the lessee of small amount, who is the lessee of small amount; and (b) drafted a distribution schedule that distributes the remainder to the Plaintiff, the applicant obligee, in the third order following the Incheon Southern-gu, Incheon, etc. (hereinafter “instant distribution schedule”). D.

The Plaintiff appeared on the date of distribution, and raised an objection to the whole amount of dividends of the Defendant, and filed the instant lawsuit on January 29, 2014, which was seven days thereafter.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 5, and purport of the whole pleadings

2. Judgment as to the main claim

A. The gist of the Plaintiff’s assertion argues that the Plaintiff’s distribution schedule should be revised by eliminating the dividend amount of KRW 22,00,000 against the Defendant and distributing the said money to the Plaintiff, as the most lessee who entered into a lease agreement in collusion with C, and thus, should be excluded from the subject of the top priority repayment.

B. The burden of proof as to the grounds for objection to a distribution 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 defendant's claim has not been constituted, the defendant is liable to prove the facts of the cause of the claim, and where the plaintiff claims that the claim has become null and void or disappeared by means of false declaration

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