Plaintiff

Defendant

November 27, 2014

Jeonju District Court Decision 2013Da5632 Decided May 23, 2014

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

Of the distribution schedule prepared by the above court on August 13, 201 with respect to the auction case of real estate rent in Jeonju District Court Decision 201Hu7029, the amount of dividends 29,807,821 won against the plaintiff is KRW 154,716,885, the amount of dividends 10,20,000 won against the defendant, the amount of dividends 25,000,000 won against the co-defendant 2 of the first instance trial, the amount of dividends 11,105,040 won against the co-defendant 3 of the first instance trial, and the amount of dividends 68,604,024,00 won against the co-defendant 4 of the first instance trial and the amount of dividends 11,105,040 won against the co-defendant 3 of the first instance trial and the amount of dividends 68,604,024 won against the co-defendant 4 of the first instance trial.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Facts of recognition;

The following facts shall not be disputed between the parties, or may be recognized in full view of the entries in Gap evidence 1 through 6 (including additional numbers) and the whole purport of pleadings:

A. The rights relationship of the parties

1) Nonparty 5 completed the registration of the establishment of a mortgage on July 30, 2007, the maximum debt amount of KRW 300,000,000, the maximum debt amount of KRW 300,000,000, the maximum debt amount of KRW 317,000 on August 31, 2007, the establishment of a mortgage on the establishment of a mortgage on August 31, 2007, the maximum debt amount of KRW 75,00,000,000, the maximum debt amount of KRW 75,000,000 on August 31, 2007, the establishment of a mortgage on KRW 539,00,000, the maximum debt amount of KRW 75,000,000 on September 35, 2007, and each maximum debt amount of KRW 700,000 on September 35, 200.

2) With respect to the instant real estate, the Plaintiff completed the registration of establishment of the mortgage on April 15, 2008, the maximum debt amount of KRW 110,000,000,000, while the registration of establishment of the mortgage on August 31, 2007 and the mortgage on September 3, 2007, on September 16, 2007, on the ground of the transfer of contract between Nonparty 5 and the right to collateral security on April 17, 2008.

3) The non-party 1 (the non-party) received the decision of provisional seizure of the instant real estate as indicated below, and the provisional seizure registration was completed on the same day based on the decision of provisional seizure (the provisional seizure completed by the defendant is referred to as the "provisional seizure of this case").

On October 19, 194, the debtor was non-party 1 (the case number) who was non-party 6, the court of decision on the pertinent real estate (the non-party 1) and on October 27, 2014, the total amount of non-party 6's claim acquisition on July 6, 2013, the non-party 6's entire Jeonju District Court No. 95Kadan2924, July 10, 2095, the non-party 6's entire Jeonju District Court No. 95Kadan2924, July 10, 1995, and the non-party 6's title B, 3, 4, 95Kadan2965, National Agricultural Cooperative Federation of Jeonju District Court No. 95Kadan2965, Feb. 3, 200, the non-party 7, 3, 48, 1968.

B. The progress of the auction procedure and the filing of a lawsuit of demurrer against the distribution of this case

1) On July 30, 2007, Nonparty 5 applied for a discretionary auction of real estate based on the right to collateral security on the instant real estate, and on April 26, 201, the auction procedure (hereinafter “instant auction procedure”) began on April 26, 201 with the Jeonju District Court Decision 201Mo7029, and the instant real estate was sold to Nonparty 7 on July 12, 2013.

2) As to the amount to be actually distributed on August 13, 2013, the date of distribution, 512,071,335 won, the distribution court: (a) distributed 10,200,000 won to the Defendant, the transferee of Nonparty 1 (the Nonparty Nonparty) by the person holding the right of provisional seizure; (b) to Nonparty 2, the person holding the right of provisional seizure, and 10,000,000 won to Nonparty 3; (c) to Nonparty 1,105,040 won to the Agricultural Cooperative Asset Management Co., Ltd., the transferee of the National Agricultural Cooperative Federation, the person holding the right of provisional seizure, and 30,000,000 won to Nonparty 5, the mortgagee of the right of provisional seizure, and the amount to be distributed to Nonparty 4, 68,604,024 won to Nonparty 1, the mortgagee of the right of provisional seizure, respectively, on the same date, the Plaintiff filed a distribution schedule against the Defendant 2.

3) Meanwhile, in the instant auction procedure, the Plaintiff reported the claim amounting to KRW 538,572,655, and the sum of the maximum debt amount in the instant auction procedure held in the name of the Plaintiff was KRW 260,000,000 ( = 75,000,000 + + KRW 75,000,000 + KRW 110,000).

C. Defendant’s request and confirmation of payment order against Nonparty 6

The Defendant asserted that Nonparty 1’s loan claim amounting to KRW 10,200,000 against Nonparty 6 was transferred. On July 8, 2013, the Defendant filed an application with Nonparty 6 for a payment order seeking the above transfer amount and the delayed payment amount as Seoul Central District Court 2013 tea 48042, and the payment order issued on August 1, 2013 of the above court became final and conclusive on August 24, 2013.

(d) A ruling of revocation of provisional seizure;

The plaintiff filed an application for the revocation of provisional seizure on the ground that the above provisional seizure creditor did not bring a lawsuit on the merits for ten years after the provisional seizure was executed, and received the decision to revoke each provisional seizure as listed below, and the decision was finalized as it is.

(1) On November 6, 2013 (Final District Court Decision 94Kadan4092, Jeonju District Court Decision 94Kadan4092, Jeonju District Court 2013Kadan3316 (No. 2, 2013) decided on February 21, 2014 (No. 6, 2014), Jeonju District Court 95Kadan2924, Jeonju District Court 2013DaDa31314, Jeonju District Court 2013, Jeonju District Court 2013Dadan2931314, Nov. 6, 2013 (No. 2013) decided on February 21, 2014 (No. 2013Kadan314, Dec. 31, 2013).

Note 2) Jeonju District Court 2013Kadan3316

2. Determination:

A. Determination on the cause of the claim

In a case where the execution of provisional seizure is revoked after the amount of distribution to the creditor of provisional seizure is deposited in a lawsuit of demurrer against distribution, or where the creditor of provisional seizure is sentenced to a final judgment against the lawsuit on the merits, such deposit shall not be delivered to the debtor, but be distributed additionally to other creditors (see Supreme Court Decision 2003Da32681, Apr. 9, 2004, etc.). Meanwhile, the lawsuit of demurrer against distribution filed by the creditor is to resolve a dispute over the amount of distribution among creditors who are parties to the lawsuit of demurrer against distribution between the creditors who are parties to the lawsuit of demurrer against distribution, the judgment of the lawsuit shall change the portion of distribution which is relatively disputed among the creditors who are the plaintiff and the defendant. In a case where it is recognized that the defendant's claim does not exist, the claim of the other creditor who did not raise an objection in calculating the amount of distribution reverted to the plaintiff among the disputed dividends, and the same holds true even if there is a prior creditor than the plaintiff among other creditors who did not raise an objection (see Supreme Court Decision 2000Da41

In light of the above legal principles, as seen earlier, the provisional attachment decision of this case was revoked on November 6, 2013 and the decision became final and conclusive on November 20, 2013. Thus, the amount of dividends against the defendant is not to be delivered to the owner of the real estate of this case, but to be distributed to the creditors additionally.

Meanwhile, in case where the provisional seizure decision was revoked by a creditor, the above creditor is not allowed to participate in the distribution procedure as a person holding the provisional seizure, and the defendant also can participate in the distribution procedure under the premise that the defendant as a general creditor has separately demanded a distribution until the completion period for demanding a distribution as a general creditor. However, as seen earlier, as long as the provisional seizure of this case was revoked, the defendant as a creditor of the previous non-party 6, who was the provisional seizure, is merely in the position of a general creditor against the "non-party 6", and as such, the defendant is not in the position of a general creditor against the "non-party 7" who is the owner of the real estate at the time of the execution of the auction procedure of this case, the defendant cannot participate in

Therefore, since the part of the instant distribution schedule prepared to distribute KRW 10,200,000 to the Defendant is unlawful, the said dividend amount against the Defendant shall be KRW 0,000, and the said dividend amount shall be deemed to be distributed to the Plaintiff who raised an objection against the Defendant, and the said dividend amount shall be revised.

B. Judgment on the defendant's argument

The defendant asserts to the effect that even if a decision to revoke provisional seizure became final and conclusive, the provisional seizure does not retroactively cease to have effect due to the execution of provisional seizure. Thus, the defendant still has the right to receive dividends as a person holding the provisional seizure at the time of the preparation of the distribution schedule of this case, even if the plaintiff

However, it cannot be deemed that the distribution procedure has been terminated until the deposited dividends are paid to the deposited parties. In a lawsuit of demurrer against distribution, the plaintiff may assert the grounds that occurred after the date of distribution and until the date of closing argument in the fact-finding court as the grounds for objection (see Supreme Court Decisions 2003Da32681, Apr. 9, 2004; 2007Da27427, Aug. 23, 2007). As long as the provisional attachment decision of this case was revoked on Nov. 6, 2013, and the said decision becomes final and conclusive on Nov. 20, 2013, the plaintiff may assert the revocation of the provisional attachment decision of this case as the grounds for objection to the objection of this case, regardless of whether the provisional attachment of this case became retroactively extinct as a result of the revocation of the provisional attachment decision of this case, the above assertion by the defendant is without merit.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just with this conclusion, and the defendant's appeal of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judge Lee Jae-ho (Presiding Judge)

1) The real estate in this case was owned by Nonparty 6, and the ownership transfer registration was made to Nonparty 7 on December 16, 1995. Nonparty 1 (the Nonparty Nonparty), Nonparty 2, and Nonparty 3, who was the right holder of the provisional seizure, received the decision of provisional seizure as of the date of ownership transfer to Nonparty 6, and Nonparty 5 and the Plaintiff completed the establishment registration of neighboring mortgage after the transfer of ownership to Nonparty 7. However, where the ownership of the object of provisional seizure after the execution of provisional seizure is transferred to a third party, the right of provisional seizure can be exercised first by the right holder of provisional seizure, and the third party’s creditors can receive dividends from the sale price of the object of provisional seizure to the extent of the claim amount at the time of the decision of provisional seizure. The third party’s creditor cannot receive dividends from the amount of the above proceeds of provisional seizure to the extent of the effect of prohibition of disposal of the object of provisional seizure (see, e.g., Supreme Court Decision 2006Da1986, Jul. 28, 2006).

2) In the above case of revocation of provisional seizure, the Defendant argued that the provisional seizure order was not revoked on the ground that the Defendant filed a lawsuit against Nonparty 6 by filing an application for a payment order against Nonparty 6, but the above court revoked the provisional seizure order of this case on the ground that the provisional seizure order of this case (as of October 19, 1994), when the creditor of provisional seizure did not file a lawsuit on the merits within 10 years after execution of provisional seizure, the debtor of provisional seizure or interested person may apply for revocation thereof, and upon the expiration of the period, the requirements for revocation are completed, and even if the lawsuit on the merits was filed thereafter, the revocation of provisional seizure does not take effect (see Supreme Court Decision 9Da37887, Oct. 26, 199).