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(영문) 인천지방법원부천지원 2017.11.28 2017가단9222
배당이의
Text

1. The plaintiff's respective claims against the defendants are all dismissed.

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

Reasons

1. Basic facts

A. On August 27, 2013, the Plaintiff leased KRW 170 million to H, set up a collateral on each real estate listed in the attached list owned by H, and upon the Plaintiff’s application for voluntary auction, rendered a decision to commence the auction on November 11, 2014 as to each of the above real estate.

(hereinafter “instant auction procedure”

B. During the instant auction procedure, the Defendants filed a report on the right and demand for distribution, alleging that they were some of the respective real estate indicated in the separate sheet as the lessee and the mortgagee.

C. On June 28, 2017, the said court distributed KRW 19 million to Defendant B (I), C (J) and D (K) who demanded a distribution as a small lessee on the date of distribution, respectively, in the first order, and distributed KRW 181,335,50 to the Plaintiff who applied for a voluntary auction as a mortgagee. Defendant E (L, M) who made a demand for distribution as a person having a right to lease on a deposit basis, prepared a distribution schedule (hereinafter “instant distribution schedule”) with the content that distributes a total of KRW 1,982,667 in the third order.

On the date of distribution, the Plaintiff filed the instant lawsuit on July 5, 2017, which was within one week thereafter, against the entire amount of dividends to the Defendants on the date of distribution.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 4, 6, 7, 9, 10, and the purport of the whole pleadings

2. The plaintiff's assertion and judgment as to the plaintiff

A. There are circumstances to suspect the process of entering into a lease agreement of the Plaintiff’s alleged Defendants, and the Defendants constitute the most lessee and the most mortgagee, and thus, each dividend amount against the Defendants should be deleted.

B. In a lawsuit of demurrer against distribution, the Plaintiff did not assert or prove the facts constituting the grounds for objection against distribution. As such, the obligee who filed an objection against distribution by asserting that the other party’s claim is disguised shall bear the burden of proof.

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