2015 Ghana 143376 Demurrer

A person shall be appointed.

B

March 22, 2016

June 10, 2016

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Seoul Northern District Court 2014 other ○○○○○○○○○○○ For auction of real estate

Of the distribution schedule drawn up on November 12, 2015, the amount of dividends to the defendant shall be KRW 75,57,774 in 55,57,774 in 55,57,774 in total:

The amount of dividends against the plaintiff shall be corrected to KRW 20,00,000.

1. Basic facts

A. On December 6, 2013, the Defendant set up a mortgage on the instant building with the maximum debt amount of KRW 113,100,000, and the debtor C around June 2014, the Defendant voluntarily filed an application for an auction on the instant building with the Seoul Northernbuk-gu Seoul Northern District Court 201 another ○○○○○○○○○○ on June 6, 2014 (hereinafter referred to as “the instant auction procedure according to the instant auction procedure”). This decision was rendered on December 6, 2014.

B. In the instant auction procedure, on August 7, 2014, the final date for demand for distribution was publicly announced on October 16, 2014.

C. On October 12, 2015, the Plaintiff asserted that it is a lessee who entered into a lease agreement with C with respect to the instant building, and filed a report on the right to demand distribution of the lease deposit amount of KRW 20 million, and filed an application for demand for distribution.

D. In the instant auction procedure, the Seoul Northern District Court: (a) distributed dividends of KRW 75,577,74 in the sixth order among KRW 89,078,04 to the Defendant on November 12, 2015; and (b) drafted a distribution schedule with the content that the Plaintiff would be excluded from dividends (hereinafter referred to as “instant distribution schedule”).

E. The Plaintiff appeared on the aforementioned date of distribution, and raised an objection against KRW 20 million out of the amount of distribution against the Defendant, and filed a lawsuit of demurrer against the distribution on November 17, 2015.

[Grounds for Recognition] Unsatisfy, entry in Gap evidence 1 to 13 (including branch numbers), the purport of the whole pleadings

2. Determination as to the legitimacy of the instant lawsuit

A. While the Plaintiff entered into a lease agreement with C on the instant building and was a genuine lessee entitled to protection under the Housing Lease Protection Act that has paid deposit, the enforcement officer omitted matters concerning the Plaintiff’s lease relationship in the instant auction procedure, and thus excluded the aforementioned dividends, the Plaintiff filed a lawsuit of demurrer to the distribution of the instant dividend table with the purport that the amount of the dividend distributed to the Defendant, which is recognized as the priority repayment right, should be reduced to the Plaintiff’s lease deposit amount of KRW 20 million, and that the instant dividend table should be revised.

B. Prior to determining whether the Plaintiff’s aforementioned assertion on the grounds of claim was legitimate, we first examine whether the instant lawsuit of demurrer against distribution was legitimate.

1) Creditors holding an executory exemplification, creditors who have seized after a decision on commencing auction was registered, creditors who have the right to demand a preferential reimbursement under the Civil Act, the Commercial Act and the Commercial Act, and other Acts, may receive a distribution only when they have made a demand for distribution by the deadline for demanding a distribution. In the event that no legitimate demand for distribution has been made, creditors who have the right to demand a preferential reimbursement under the substantive Acts may not receive a distribution from the proceeds of sale (see Supreme Court Decision 2008Da65242, Dec. 24, 2008). The right to claim a return of the small amount deposit by the lessee of a small amount, the right to demand a preferential reimbursement under the Housing Lease Protection Act, constitutes the right to demand a distribution requiring the said demand for distribution (see Supreme Court

22. See Supreme Court Decision 2001Da70702 delivered on the date of distribution. Meanwhile, a person standing to sue a lawsuit of demurrer against distribution was present on the date of distribution and raised an objection as to the substantive nature of the distribution schedule, and in order for a creditor to raise an objection as to the distribution schedule, he/she should have lawfully demanded a distribution by the mere fact that he/she is a creditor against an executory obligor under the substantive law. The creditor who did not lawfully demand a distribution did not have the right to appear on the date of distribution and raise an objection as to the distribution schedule. Thus, even if such person appeared on the date of distribution and raised an objection as to the distribution schedule, he/she did not have the right to raise an objection as to the distribution schedule, even if he/she did not have the right to raise an objection on the date of distribution (see Supreme Court Decision 2003Da27696 delivered on August 22, 2003). This is unlawful since he/she did not have the right to raise an objection as to the distribution schedule on the date of distribution distribution in this case.

C. Therefore, the instant lawsuit of demurrer against distribution is unlawful without having to determine the Plaintiff’s assertion of the cause of claim, which is brought by a person who has no standing to sue.

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it, and it is so decided as per Disposition.

Judges Effective Decree