209Na14026 Demurrer against distribution

Agricultural Cooperatives

Representative of the Association, the President of the Association

Law Firm Fae, Counsel for the defendant-appellant

Attorney Cha Jong-soo, Attorney Lee Dong-soo, Counsel for successor

1. CreditB (62 years old, female);

2. KimB1 (54 years old, female)

3. HouseB2 (Name B2: Rod, 49 years old, female)

4. Gamb3 (81years, Credit)

5. FixedB4 (80 years old, female)

Busan District Court Decision 2009Da1340 Decided July 17, 2009

April 21, 2010

May 19, 2010

1. The plaintiff's appeal is dismissed.

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

The judgment of the court of first instance shall be revoked. With respect to the compulsory auction of real estate in Busan District Court Decision 2006Ma60143, 2007Magi247, 261, 278, 285, 23363 (Dual) in the distribution schedule prepared on December 30, 2008, the amount of 14,00,000 won for each of the dividends against the defendants against the defendants shall be KRW 0,00,000, and the amount of dividends against the plaintiff shall be KRW 1,464,624,814 won for each of the dividends against the defendants in the distribution schedule prepared on December 30, 208.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each entry described in Gap evidence 1, 2, 3, 4, and 5, Eul evidence 6, and Eul evidence 7-1 to 4.

A. Conclusion of a lease agreement by the Defendants

주식회사 토건(이후 주식회사 ◆건설'로 상호 변경됨, 이하 '소외 회사'라 한다)과 사이에, 1) 피고 여B은 2006. 10. 24.자로 부산 금정구 구서동 이 아파트(이하 '이 사건 아파트'라 한다) XXX호에 관하여 임차보증금 2,000만 원, 임대차기간 24개월로한 임대차계약서를, 2) 피고 김B1은 2006. 10. 24.자로 이 사건 아파트 XXXO호에 관하여 임차보증금 2,000만 원, 임대차기간 24개월로 한 임대차계약서를, 3) 피고 옥B2는 2006. 10. 20.자로 이 사건 아파트 XXX1호에 관하여 임차보증금 2,000만 원, 임대차기간 24개월로 한 임대차계약서를, 4) 피고 박B3은 2006. 10. 24.자로 이 사건 아파트 XXX2호에 관하여 임차보증금 2,000만 원, 임대차기간 24개월로 한 임대차계약서를,

5) As of October 27, 2006, Defendant JungB4 drafted a lease agreement with the lease deposit amount of KRW 20 million and the lease period of KRW 24 months with respect to the instant apartment housing class 3.

(b) Pre-auction cases;

1) Since a decision to commence compulsory sale on November 6, 2006 (hereinafter referred to as “decision to commence compulsory sale”) was made with respect to the instant apartment settlement, an apartment settlement, an institution-level 1, an institution-level 2, and an institution-level 3, etc. owned by the non-party company, the auction procedure was conducted with the Busan District Court Decision 2006 Ma52968.

2) However, each of the above lease agreements prepared by the Defendants between the non-party company and the non-party company stated the contents that the non-party company would preferentially repay the amount of credit of 50 million won, which is equivalent to the amount of credit of KimC, as the lease deposit received from the Defendants.

3) On the other hand, on November 24, 2006, the non-party company deposited KRW 52,807,784 as the principal and interest of the non-party company as the depositee in Busan District Court Decision 8732 in 2006, and then filed a lawsuit of demurrer against KimC as Busan District Court Decision 2006Gadan178638. The non-party company filed a lawsuit of objection against the non-party company on May 18, 2007 between the non-party company and KimC, "the non-party company paid KRW 2,083,40 to KimC by June 8, 2007, and KimC immediately withdraws the preceding auction case."

4) On June 16, 2008, the non-party company paid a settlement payment following the above conciliation, and received a decision to revoke the execution of the preceding auction case, and the registration of entry into the auction was cancelled on the 20th of the same month.

1) The Busan District Court prepared a distribution schedule in order of 1,400,000 won for each of the Defendants, the lessee, at the order of 2,39,315,949 won, and 1,406,40,468,468, and 2363 (hereinafter “the auction case of this case”) of the compulsory auction of real estate (the auction decision of December 19, 2006; hereinafter “the auction case of this case”) with respect to the apartment noise district of this case where the obligor and the owner of the company concurrently own the company (the Defendants made a demand for distribution until the end of the distribution period) in the case of the compulsory auction of real estate (the auction case of this case) (the defendants, the lessee, at the order of 2,39,315,949 on December 30, 208, who was the date of distribution, who was the lessee of the small amount of KRW 1,400,406,1464,1646.

2) On the date of the above distribution, the Plaintiff raised an objection against the total amount of each of the above dividends against the Defendants, and filed the instant lawsuit on January 6, 2009.

2. The parties' assertion and judgment

A. The parties' assertion

The plaintiff asserts that each of the above dividends against the defendants should be fully deleted and distributed to the plaintiff (the plaintiff added to the claim of May 21, 2009 and the claim for change of the claim of the non-party company and the defendants, and added to the claim of the above lease agreement as it constitutes a fraudulent act, but the court of first instance rejected the claim of the above lease agreement of the non-party company and the non-party company, or did not reside in the apartment in the above apartment. Thus, since the plaintiff did not pay the lease deposit as stipulated in the lease agreement of the non-party company and the non-party company, or did not reside in the above apartment, the plaintiff's claim of the above dividends of the non-party company should be revoked in full (the plaintiff added to the claim of the non-party company and the defendant as stated in the request for change of the claim of the non-party company and the claim of the non-party company as stated in the above lease agreement of the non-party company and the above lease agreement of the non-party company and the plaintiff's claim of the non-party 481.

B. Determination

1) According to each lease agreement entered into between the non-party company and the non-party company, the non-party company entered the contents that the non-party company would preferentially pay 50 million won, which is equivalent to the amount of the credit of the Kim C who applied for the preceding auction case, with the lease deposit received from the defendants, and withdraw the preceding auction case, as seen above. The defendants are not the preparation date of each lease agreement, but the contract deposit was paid after a considerable period of time has elapsed, or each lease deposit was paid, and the non-party company received a move-in report and received a fixed date before paying each lease deposit. The fact that the non-party company received a receipt of the lease deposit from an individual who is not the non-party company, and the non-party company received a payment of the lease deposit from the non-party company and the non-party company No. 6-1, No. 2, and No. 7-1 through No. 3, the non-party company was in arrears with wages of workers at the time of preparation of each lease agreement with the defendants, and the defendant's non-party company and the non-party company did not recognize evidence.

2) 오히려 을 제1호증의 1 내지 12, 을 제2호증의 1 내지 15, 을 제3호증의 1 내지 5, 을 제4호증의 1 내지 10, 을 제5호증, 을 제9 내지 15호증의 각 기재, 원심의 주식회사 도시가스, 원심 및 당심의 각 주식회사 은행에 대한 각 금융거래정보 제출명령결과, 당심의 ▶은행, 은행, ▼, ⑦은행, 은행에 대한 각 금융거래정보 제출명 령결과 및 당심의 법무사 남C1에 대한 사실조회결과에 변론 전체의 취지를 종합하면, 다음과 같은 사실을 인정할 수 있다.

A) In the case of Defendant CreditB, (1) paid the non-party company the down payment of KRW 7 million on December 11, 2006 and the intermediate payment of KRW 13 million on December 18, 2006 (the receipt was received from the non-party company as of December 8, 2006 for the above lease guarantee amount of KRW 20 million), (2) the moving-in report on December 12, 2006 and received a fixed date following the following date, (3) the Kim 2, who is the husband of Defendant CreditB, prepared a written occupancy guarantee on December 18, 2006, and prepared an occupancy card with himself as the householder, Defendant Credit Card as the family member, and KRW 6 million on December 18, 2006; (4) the fact that the non-party company received the aforementioned lease guarantee amount of KRW 20 million from the non-party company to the auction and transferred it to the non-party company's 160,000 won on December 18, 20006.

(3) On November 24, 2006, 200 won was deposited in 20,000 won of the advance payment for management expenses from November 29, 2006 to 20, 30,000 won was paid in 20,000 won by the head of the household, 20,000 won was paid in 20,000 won, 30,000 won was paid in 20,000 won for the remainder of 13,00 won was paid in 20,000 won, 20,000 won was paid in 20,000 won by the head of the household after November 24, 2006, 206, 30,000 won was paid in 20,000 won was paid in 20,000 won, 20,000 won was paid in 26,000 won by the occupant of the company.

3. Conclusion

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

Judges of the presiding judge, Hongju

Judges Kim Gin-ju

Judges Senior Superintendent of the Supreme Court