Plaintiff 1 and one other

Defendant 1 and two others

April 13, 2007

Daejeon District Court Decision 2005Kadan56909 Decided November 9, 2006

1. The part against the defendant 2 and 3 in the judgment of the first instance shall be revoked;

2. On November 10, 2005, the amount of dividends of KRW 14,00,000 against Nonparty 1 out of the distribution schedule prepared by the above court on November 10, 2005 with respect to the auction of real estate (Seoul District Court Decision 2004Ma3400) and the amount of dividends of KRW 14,00,000 against Plaintiff 2 shall be corrected to KRW 23,578,947, and the amount of dividends of KRW 14,00,000 against Plaintiff 1 shall be corrected to KRW 18,421,052, respectively.

3. The plaintiffs' appeal against defendant 1 is dismissed.

4. Of the total litigation cost, the part against the Plaintiffs and Defendants 2 and 3 shall be borne by Defendants 2 and 3, and the part against the Plaintiffs and Defendant 1 shall be borne by the Plaintiffs.

The judgment of the court of first instance shall be revoked. With respect to the auction of real estate rent in Daejeon District Court Decision 2004Ma3400, the amount of dividends of KRW 14,000,000 against Nonparty 1 and the amount of dividends of KRW 5,00,000 against Defendant 1 shall be deleted, respectively, and the amount of dividends of KRW 14,00,000 against Plaintiff 2 shall be corrected to KRW 25,015,520, and the amount of dividends of KRW 14,00,000 against Plaintiff 1 shall be corrected to KRW 20,000,000,000, respectively, among the dividend table prepared by the same court on November 10, 205.

1. Basic facts

The reasoning for this part of the court’s explanation is as stated in Article 420 of the Civil Procedure Act, with the exception that the part of “the progress of the auction procedure on the 1.0th day of the judgment of the court of first instance” (b) and paragraphs (b) and (d) are deemed to be “non-party 1.”

2. The plaintiffs' assertion and judgment

A. The plaintiffs' assertion

The non-party 1 is the cohabitant of the non-party 2, and the defendant 1 is the most lessee as the mother's money of the non-party 2. Since the above distribution schedule prepared on the premise that the non-party 1 is the small lessee is illegal, the above distribution schedule should be deleted as stated in the purport of the claim, and it should be distributed to the plaintiffs who are true lessees

(b) Markets:

(1) Determination as to whether the most lessee is the tenant

(A) Determination as to Nonparty 1

Considering the overall purport of the pleadings in each of the above non-party 1, Eul evidence No. 1, Eul evidence No. 1, Eul evidence No. 3, Eul evidence No. 5-1, and Eul evidence No. 2, it is difficult to find that the non-party 1 had a large number of lessees and creditors with collateral security regarding the multi-family house of this case around the time when the non-party 1 completes the move-in report under the above non-party No. 1, the non-party 1 made a demand for distribution at the auction procedure of this case after obtaining a fixed date date of approximately three months. Non-party 2 had paid the above non-party 1 to the non-party 1 at the address of the above non-party 1 on September 203, it is hard to find that the non-party 1 had a deposit receipt to the non-party 2 and the non-party 1 had been living together with the non-party 1 who was the non-party 2 and the non-party 1's heir's allegation that the above non-party 1 and the non-party 1 were the rent.

Therefore, the distribution schedule of this case prepared by Nonparty 1 to distribute KRW 14,000,00 to Nonparty 1 on the premise that Nonparty 1 is a legitimate small lessee, is unfair. Therefore, the Plaintiff’s above assertion is with merit.

(B) Determination as to Defendant Nonparty 2

The fact that Defendant 1 was Non-party 2’s Saturine does not dispute between the parties, but it is insufficient to recognize that Defendant 1 was the tenant of Non-party 2 solely on the ground that Defendant 1 was the tenant of Non-party 2’s Saturine, and there is no other evidence to recognize that Defendant 1 was the largest tenant. Rather, according to each of the evidence Nos. 4, 5-2, 5-B, 6, Defendant 1 leased Non-Dong-dong Non-dong Non-dong of this case KRW 5 million and paid KRW 5 million to Non-party 2 three times, and Defendant 1 can be acknowledged as having resided in the above Non-dong 02. Thus, Defendant 1’s assertion to delete the amount of dividends against Defendant 1 based on Defendant 1’s premise that Defendant 1 is the largest tenant of the non-dong 02.

(2) Determination of additional dividends

Of KRW 320,597,110, which is to be actually distributed after deducting execution expenses from the sale price on November 10, 2005 on the date of distribution, the auction court prepared a distribution schedule with the purport of distributing the amount of KRW 14 million to the plaintiffs as small tenants, as seen earlier. In full view of the overall purport of pleadings in the statement in subparagraph 1, it can be acknowledged that the apartment house in this case; KRW 27,00,000,000, and KRW 13,000,000,000,000,000,000,000,000 won, and KRW 27,000,000,000,0000,000 won, and KRW 14,000,000,000,000,000) under the above distribution schedule.

Meanwhile, as seen earlier, as Nonparty 1 is the most lessee, it is necessary to delete the dividend amount of KRW 14 million against Nonparty 1 and revise the above distribution schedule as it is included in the amount distributed by the plaintiffs. Since the above KRW 14 million does not reach the amount of the claims that the plaintiffs did not have received, it should be distributed proportionally in proportion to the remaining amount of claims that the plaintiffs, which are creditors in this order, have not been paid to the plaintiffs. Accordingly, it should be distributed additionally to the plaintiffs 2: KRW 9,578,947 (= KRW 14 million x 13 million x KRW 13 million /19 million, and less than KRW 13 million / 19 million ; hereinafter the same shall apply) and the plaintiff 1 should be additionally distributed to the plaintiffs 4,421,052 (= KRW 14 million x 6 million / 19 million / 19 million).

3. Conclusion

If so, the Daejeon District Court deleted the amount of 14,00,000 won against the non-party 1 out of the distribution schedule prepared by the above court on November 10, 2005 regarding the case of applying for auction of real estate amounting to the non-party 1 (Seoul District Court Decision 2004Ma34400). The amount of 14,00,000 won against the plaintiff 2 is 23,578,947 won (=14,000,000 + 9,578,947), and the amount of 14,00,000,000 won against the plaintiff 1 is 18,421,052 won (14,00,0000 + 4,421,000,000 won). Thus, the part of the appeal against the defendant 2 and 3 is dismissed as it is without merit, and it is so decided that the appeal against the defendant 1 and the decision is dismissed.

Judges Dok-man (Presiding Judge) Man Jae-nam Kim Jong-chul