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(영문) 서울고등법원 2018.11.30 2018나2031956
배당이의 소
Text

1. The part against Defendant B in the judgment of the first instance is modified as follows:

Seoul Central District Court D.

Reasons

1. Grounds for the reasoning of the judgment of the court of first instance on the underlying facts and this part of the judgment on the defense of this case

A. (1) Paragraph (c) “80,936,162 won” (No. 3th page 16) is “80,929,806 won”, and Paragraph (2) of Article 420 of the Civil Procedure Act is as follows: (a) “80,929,806 won”; and (b) “80. 30 August 30, 2010” in Article 420 of the Civil Procedure Act is as well as the grounds for the first instance judgment.

2. Judgment on the merits

A. As to this part of the cause of the claim against Defendant B, Article 420 of the Civil Procedure Act No. 3 of the judgment of the first instance pursuant to the main sentence

A. As seen earlier, the court of execution prepared a distribution schedule that distributes 150,000 won to Defendant B, a mortgagee on the date of distribution on August 25, 2017 at the instant auction procedure, with regard to a claim for repayment of the dividend in the instant case (see, e.g., 9, 11 to 10, 2). However, insofar as the distribution schedule was not confirmed by the Plaintiff’s statement of objection and filing a lawsuit of objection against the instant distribution, it cannot be deemed that Defendant B received the repayment of the claim equivalent to the amount of the dividend; b) in a lawsuit of demurrer against distribution, the Plaintiff may assert the grounds for objection that occurred from the date of distribution until the date of closing argument at fact-finding proceedings after the date of distribution, and thus, the remaining amount of the claim falls short of the amount of claims that became the basis of the distribution after the creditor’s repayment, etc. during the lawsuit of demurrer against distribution after the date of distribution falls short of the remaining amount of claims.

Meanwhile, in cases where the amount of a creditor’s claim becomes partially extinguished due to repayment during a lawsuit of demurrer against distribution after the date of distribution, barring any special circumstance, such repayment shall be deemed appropriated first to the principal, which was appropriated for the interest accrued until the repayment takes effect pursuant to Article 479(1) of the Civil Act,

(2) ...

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