Plaintiff (Law Firm Barun, Attorney Park Jae-hwan, Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Jong-soo, Counsel for defendant-appellant)

March 6, 2012

Chuncheon District Court Decision 2010Ra1503 Decided July 14, 2011

1. The defendant's appeal is dismissed.

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

1. Purport of claim

Of the dividend table prepared by the above court on October 20, 2010 with respect to the case of voluntary auction of real estate in the Chuncheon District Court's Gangseo branch court's 2009 knife 883, the amount of dividends to the plaintiff is 28,172,578 won, 48,242,578 won, and the amount of dividends to the defendant is 20,070,000 won.

2. Purport of appeal

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

1. Quotation of judgment of the first instance;

The reasoning for this Court’s reasoning is as follows, except for the addition of the following judgments as to the allegations made by the Plaintiff in the trial, and therefore, the reasoning for this Court’s reasoning is as stated in the main sentence of Article 420 of the Civil Procedure Act.

2. Additional determination

The Defendant asserts that, unlike the fact that the Plaintiff applied for a formal auction on the instant real estate, it is against equity and fair to treat the Defendant, who received dividends in the distribution procedure through an active exercise of rights by acquiring an executive title, rather than to treat the Defendant as equal to the other inheritance creditors.

In light of the overall purport of the pleadings as set forth in the evidence No. 50-1 to No. 50-4, the defendant, as well as the non-party 1 (Supreme Court Decision), filed a lawsuit against the plaintiff et al. for return of the deposit amount paid under the pretext of guidance, and received a favorable judgment against the plaintiff et al. on August 27, 2008 to pay 31,949,500 won and delay damages within the scope of the property inherited from the non-party 1 (Seoul Northern District Court Decision 2008Da2320, Sept. 18, 2008). (2) The non-party 2 filed a lawsuit against the plaintiff et al. for return of the deposit amount paid from the non-party 1 to the non-party 2, the non-party 1 (the non-party 2, etc.) to the non-party 1 to the non-party 5-party 2, and the non-party 2, etc., sought damages from the plaintiff 1 to the non-party 2.

According to the above facts, although the plaintiff did not have any other inheritance obligee, it cannot be said that the defendant is trying to evade the obligation to pay money to the defendant, and even if the defendant acquired an executive title and actively exercised his right by taking part in the distribution procedure of this case, in light of the purport of the formal auction system and Article 1034(1) of the Civil Act, insofar as there are many inheritance creditors and the defendant are merely general obligees, it is unreasonable to treat the defendant equally with other inheritance obligees.

The defendant's above assertion is without merit.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-hee (Presiding Judge)