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1. Revocation of a judgment of the first instance;
2. The instant lawsuit shall be dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. On February 2, 2015, the Defendant: (a) filed an application for provisional seizure against D and the Defendant on June 5, 2015; and (b) completed provisional seizure upon obtaining a decision of provisional seizure on August 31, 2015, on the ground that the Defendant had a claim for a security deposit against lease of KRW 200,000,000 against D based on the real estate lease agreement signed between D and the Defendant (hereinafter “instant lease agreement”); and (c) filed an application for provisional seizure against the real estate on the attached list owned by D (hereinafter “instant real estate”).
B. As to the instant real estate, on July 20, 2015, upon the request of the Plaintiff, who is a mortgagee, the order to commence the auction of the real estate C (hereinafter “instant auction”) with the Goyang-gu District Court Goyang-dong District Court was rendered. On October 14, 2015, the Defendant filed an application for a report on the right and a demand for distribution with the instant auction court as a creditor of the provisional seizure according to the said provisional seizure decision.
C. On March 10, 2016, the Plaintiff issued a collection order on March 22, 2016, on the ground that there was a separate claim other than the claim secured by the collateral security against D as Seoul Western District Court Decision 2016TTT2399, on the ground that “the surplus remaining after distribution to the creditors in the distribution procedure of the instant auction” and received a collection order on March 22, 2016.
On March 29, 2016, the instant auction court opened a date of distribution on March 29, 2016, and drafted a distribution schedule of KRW 1,093,100,389, as shown in the following table (hereinafter “instant distribution schedule”) with respect to the amount to be actually distributed to the creditors, the court of the instant auction in order of dividends of KRW 4,498,480,480,172,200,000 for the Defendant, the amount of dividends of KRW 123,125,49,498,480, 925,071,172,163,530,737,737.
E. The Plaintiff appeared on the aforementioned date of distribution and raised an objection against KRW 151,868,982 out of the amount of distribution against the Defendant who is a person entitled to provisional seizure by subrogationing D, and on April 5, 2016, which is seven days thereafter.