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(영문) 서울고등법원 2016.10.21 2015나30970
배당이의
Text

1. Of the judgments of the court of first instance, the parts to be dismissed below and those to be corrected by the distribution schedule.

Reasons

1. The reasoning for this part of this Court is that the reasoning for this Court is as stated in the corresponding part of the reasoning for the judgment of the first instance except that each “20% per month” of the second and fifteenth instances of the judgment of the first instance is different from each other “2% per month”, and therefore, it is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination as to the legitimacy of the part of expansion of the claim in the plaintiff's lawsuit against defendant B

(a) A lawsuit of demurrer against distribution shall be filed by a person who has appeared on the date of distribution and raised an objection within one week from the date of distribution;

(Article 154(3) of the Civil Execution Act. Therefore, it is possible to expand the purport of a claim within the extent of having raised an objection on the date of distribution before the period for filing a lawsuit expires. However, where expanding the purport of a claim after the period for filing a lawsuit expires, the extended part of a lawsuit that has been instituted subsequent to the period for filing

B. The fact that the Plaintiff and the designated parties appeared on the date of distribution on August 21, 2014 and raised an objection to the total amount of the dividend amount against Defendant B is as stated in the judgment of the first instance court cited earlier, and that the Plaintiff and the designated parties sought to correct the dividend amount of KRW 130,000,000 from August 27, 2014, when filing the instant lawsuit on August 27, 2014, the Plaintiff and the designated parties sought to correct the amount of KRW 130,00,000,000, which is within one week from the Plaintiff and the designated parties, as KRW 96,795,404. The fact that the Plaintiff sought to delete the dividend amount of KRW 130,00,000 on March 23, 2015 is apparent.

Therefore, among the plaintiff's lawsuit against the defendant B, the part in which the purport of the claim is expanded as above, that is, the amount exceeding 3,204,596 won out of the dividend amount of 130,000,000 won against the defendant B (=130,000,000 won - 96,795,404 won) is reduced, and correspondingly, the part in which the plaintiff sought an increase of the dividend amount against the plaintiff against the defendant B was filed one week after the lapse of one week from August 21, 2014, which is the date of distribution. Thus, the period of filing the lawsuit is unlawful.

3. Judgment on the merits of the Plaintiff’s claim

A. The Plaintiff’s assertion Nos. 1 and 2.

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