Demurrer against distribution

Whether dividends are reasonable

Article 35 of the National Tax Collection Act

2014 Ghana 21649 Demurrer against the distribution

AA

Korea

March 6, 2015

April 3, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

In the distribution schedule prepared by the Cheongju District Court on November 3, 2014 with respect to voluntary auction cases of real estate No. 6810, the amount of dividends to the defendant shall be 30,957,785 won, 15,756,010 won, and the amount of dividends to the plaintiff shall be 15,765,210 won, and 563,435 won, 15,765,210 won, respectively.

1. Basic facts

A. On October 21, 2009, the Plaintiff and BB completed each registration of transfer of ownership on October 16, 2009 with respect to 1/2 shares of 1/2 shares in Cheongcheon-do, Cheongcheon-gun, Cheongcheon-gun, Cheongcheon-gun, Cheongcheon-do, Cheongcheon-do (hereinafter “instant real estate”).

B. On October 21, 2009, the Plaintiff received a loan from the New Saemaul Depository of the Chungcheongnam-gu (former name before the change): In order to secure the above loan obligation on the same day, the Plaintiff and the BB entered into a mortgage-based contract with the Daiju Saemaul Depository of the Republic of Korea as to the whole of the instant real estate, and completed the registration of creation of a neighboring mortgage in the name of the debtor, the debtor, and the New Saemaul Depository of the Republic of Korea as the plaintiff (hereinafter referred to as the “mortgage-mortgage-backed security”).

C. On October 25, 2010, the court below completed the attachment registration on the BB’s share out of the instant real estate on the grounds of the BB’s delinquency in tax payment.

D. After that, the Plaintiff delayed the repayment of the above loans to the New Saemaeul Community Depository, and the New Saemaeul Community Depository applied for a voluntary auction of the instant real estate at the Cheongju District Court 2014ta, 6810, which was based on the instant right to collateral security, and the auction court prepared, on November 3, 2014, the following distribution schedule (hereinafter “instant distribution schedule”) at the auction procedure conducted accordingly.

E. On the date of the above distribution, the Plaintiff raised an objection to the dividend amount of the Defendant, and filed the instant lawsuit within one week thereafter.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

Since the right to collateral security of this case has the effect of all of the real estate in this case, the auction court should first distribute the amount of KRW 30,403,550, which is the secured debt of the right to collateral security of this case, from KRW 61,933,970, which is the amount to be distributed to each of the creditors of the plaintiff and BB, and then distribute the remainder of KRW 31,530,420 ( KRW 61,93,970 - KRW 30,403,550), which is the secured debt of the right to collateral security of this case, to each of the creditors of the plaintiff and BB.

However, the auction court divided the amount of KRW 61,93,970 to be distributed from the beginning to 1/2 of the shares owned by the Plaintiff and BB, and divided the amount of KRW 61,93,970 from the beginning to the beginning, into one-half of the shares owned by the Plaintiff’s co-ownership, and distributed the remainder of KRW 563,435 to the Plaintiff. The auction price of the BB co-ownership was fully distributed to the creditors

Therefore, the amount of dividends against the plaintiff among the distribution schedule of this case shall be KRW 15,765,210, and the amount of dividends against the defendant shall be corrected to KRW 15,756,010, respectively.

B. Determination

1) Relevant legal principles

Where a mortgage has been created on an immovable property jointly owned for the security of the same claim, each co-ownership of co-owned shares is established with respect to each co-owned share as a joint mortgage relationship, and each co-owned share guarantees the total amount of the secured debt (see Supreme Court Decision 2005Da44091, Jun. 15, 200

Article 368(1) of the Civil Act, which provides that "where a mortgage has been created on several real estate as security of the same claim, if the mortgagee (or the third party purchaser) is in a position to exercise the security right to the real estate owned by the debtor by subrogation under Articles 481 and 482 of the Civil Act, if the proceeds of the auction are distributed at the same time, the share of the claim shall be determined in proportion to the proceeds of the auction of each real estate shall be applied." In such a case, the auction court shall preferentially distribute the proceeds of the auction of the real estate owned by the debtor to the joint mortgagee, and if the proceeds of the auction of the real estate owned by the mortgagee (or the third party purchaser) are distributed at the same time, the proceeds of the auction of the real estate owned by the debtor shall be additionally distributed from the proceeds of the auction of the real estate owned by the joint mortgagee (see, e.g., Supreme Court Decisions 208Da25671, Apr. 23, 2010>

[Reference]

2) Specific determination

As seen earlier, the Plaintiff and BB completed the registration of creation of a new mortgage on all of the instant real estate owned in proportion to one-half shares in order to secure the Plaintiff’s obligation. Therefore, in light of the aforementioned legal principles, the relationship between the Plaintiff and BB’s respective co-owned shares is established. Therefore, the auction court should preferentially distribute the Plaintiff’s co-owned shares to the new Saemaul Depository, a joint mortgagee, from the auction price for the Plaintiff’s co-owned shares, and additionally distribute dividends from the auction price for the co-owned shares of BB, a person who has pledged his property to secure another’s obligation.

Therefore, among the 61,933,970 won to be distributed by the auction court in this case, 30,966,985 won (61,93,970 won x 1/2) for the auction proceeds of the Plaintiff’s co-owned share of KRW 30,403,550 (the joint mortgagee x 61,93,970 won x 1/2), the remainder 563,435 won is distributed to the Plaintiff. Meanwhile, it is reasonable to view that the auction proceeds of the co-owned share of KRW 30,96,985 to the Defendant, who is the head of Busan Gun and the execution creditor, who is the delivery authority to BB, is justifiable in light of the above legal principles. Therefore, the Plaintiff’s above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.