(영문) 부산지방법원 2015.05.19 2014가단81425

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(영문) 부산지방법원 2015.05.19 2014가단81425

배당이의

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1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. On March 22, 2012, the Plaintiff was granted the right to collateral security (hereinafter “instant right to collateral security”) with respect to the second floor E of Jung-gu Busan Metropolitan City (hereinafter “instant building”) that was owned D as collateral by leasing KRW 30 million to D on March 2, 2012, with the maximum debt amount of KRW 30 million.

On April 1, 2012, the Defendant entered into a lease agreement with D as to the instant building for a period of two years from April 15, 2012 (hereinafter “instant lease agreement”) and completed a move-in report on April 23, 2012.

On December 12, 2013, the Plaintiff filed an application for voluntary auction on the basis of the instant right to collateral security (Dasan District Court C) and on December 13, 2013, at the said auction procedure commenced, the Defendant prepared a distribution schedule (hereinafter “instant distribution schedule”) stating that the Defendant shall distribute KRW 17,603,384 to the Defendant, who is a lessee of small claims under the instant lease agreement, the amount of KRW 17,27,364 to the Plaintiff, who is a mortgagee, on October 14, 2014.

The Plaintiff appeared on the date of distribution of the instant case, and raised an objection to the whole amount of dividends of the Defendant, and filed the instant lawsuit on October 20, 2014.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3, significant facts in this court, purport of the whole pleadings

2. The instant lease contract, which is the cause of the claim, is based on a false representation between D and the Defendant, and is only the Defendant is the most lessee.

Therefore, the instant dividend table should be corrected to delete the dividend amount to the Defendant and distribute the dividend amount to the Plaintiff.

3. The burden of proof as to the grounds for objection against distribution in a lawsuit of demurrer against distribution is in accordance with the principle of allocation of the burden of proof in a general civil procedure. Therefore, in a case where the Plaintiff asserts that the claim of the Defendant was not constituted, the

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