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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. The Plaintiff’s assertion in the Seoul Northern District Court C real estate auction procedure case (hereinafter “instant dividend case”) revealed that the title of execution (the claim for the takeover of the judgment with a declaration of provisional execution 2013Kadan34160 rendered by the High Government District Court 2013Gadan34160) applied by the Defendant (the claim for takeover of the judgment with a declaration of provisional execution 2013Gadan34160) is a legal act to be cancelled by the judgment of the lawsuit for revocation of fraudulent act, etc. (the appellate court proceeding with the Jung-gu District Court 2015Na50683) filed by the Nonparty E, the creditors of Nonparty E, and the above support raised by G, F and G, which is the creditors of
2. Determination
A. In a case where the debtor raises an objection against the distribution schedule prepared in the distribution procedure, the creditor himself/herself who has an executory exemplification of executive titles, i.e., the creditor who has raised an objection as to the existence of a claim or the scope of an executory title, shall exclude the executory power of the executive titles. As such, a lawsuit of demurrer against the claim
(Article 154(2) of the Civil Execution Act. Article 154(2) of the judgment with a declaration of provisional execution cannot file a lawsuit of demurrer against a claim unless the judgment becomes final and conclusive (Article 44(1)), but an obligor may, by appeal, exclude the executory power of the judgment by disputing the existence or the scope of the claim, and may receive a decision of stay of execution. Thus, an obligor cannot file a lawsuit of demurrer against the judgment with a declaration of provisional execution, on the ground that it is impossible for an obligor to file a lawsuit of demurrer against a distribution against the obligee with
(See Supreme Court Decision 2013Da86403 Decided April 23, 2015). B.
Therefore, the title of the dividend case of this case for which the defendant applied for auction is transferred to the Health Center and the judgment of the District Court 2013da34160 sentenced to provisional execution (the appellate court is in progress as the District Court 2014Na13281).