2013Na3028444 Demurrer against distribution

DO

Daegu District Court Decision 2012Gadan64991 Decided October 1, 2013

May 28, 2014

July 2, 2014

1. The plaintiff's appeal is dismissed.

2. The part concerning participation in the appeal costs shall be borne by the Intervenor, and the remainder shall be borne by the Plaintiff.

The judgment of the first instance court shall be revoked. The amount of the distribution schedule prepared by the said court on December 7, 2012 with respect to the real estate auction case No. 1122, Daegu District Court (Tgu District Court 2012) shall be deleted from KRW 57,971,538, and the distribution schedule shall be corrected to distribute that amount to the Plaintiff’s Intervenor.

1. Basic facts

The following facts shall not be disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings as a whole in each entry of Gap evidence 1, 2, and 10-1 through 4:

A. As to the real estate owned by the Plaintiff’s Intervenor (hereinafter “instant real estate”).

On November 29, 2011, the registration of creation of a neighboring mortgage (hereinafter referred to as the "registration of creation of a neighboring mortgage of this case") was completed with the maximum debt amount of 80,000,000 won, the debtor, the plaintiff and the mortgagee as the defendant.

B. On January 17, 2012, the Defendant filed an application for a voluntary auction of real estate concerning the instant real estate with the Daegu District Court (Seoul District Court Decision 201Ma1122, and at the above auction procedure, the court, out of KRW 227,971,538, 170,000, out of the amount to be distributed on December 7, 2012, prepared a distribution schedule with the content that the Defendant distributes the amount to the Defendant, who is the applicant and the mortgagee, to the ○○○, the mortgagee, and the remaining KRW 57,971,538, in the first order.

C. On the aforementioned date of distribution, the Plaintiff’s application for objection to the distribution against the Defendant was deemed to have been made a statement, and on December 13, 2012, the Plaintiff filed the instant lawsuit against the Defendant on the said date. The Plaintiff’s assertion on February 2, 201

In the instant case, the establishment registration of a mortgage was completed in the name of the Defendant in the course of lending money to the Plaintiff, and there is no circumstance to deem that the secured debt of the right to collateral was actually attributed to the Defendant, a third party, and the establishment registration of a mortgage in the name of the Defendant, was invalid because the Plaintiff’s Intervenor, who was the surety, did not consent to the establishment registration of a mortgage in the name of the Defendant. Even if the establishment registration of a mortgage in the instant case is valid, the establishment registration of a mortgage in the instant case is invalid. However, even if the establishment registration of a mortgage in the instant case is valid, the amount loaned to the Plaintiff is limited to KRW 30,000,000,000 won, and the Plaintiff fully repaid to

Ultimately, since the Defendant is deemed to have no right to receive dividends based on the instant right to collateral security, the distribution schedule should be revised by striking the amount of dividends to the Defendant out of the distribution schedule prepared by the said court on December 7, 2012 with respect to the real estate auction case of Daegu District Court 2012TTTTAD 11222, and distributing the amount to the Plaintiff’s Intervenor.

3. Determination

A. Determination as to whether the establishment registration of a neighboring mortgage of this case was void of the cause

Since the right to collateral security is established for the purpose of collateral security, in principle, the creditor and the mortgagee should be the same person. However, in the event that the right to collateral security is established with the third party as the holder of the right to collateral security, there is an agreement between the creditor, the debtor and the third party on this point, and in exceptional circumstances where the claim is deemed to have been substantially reverted to the third party by means of assignment of claim, contract with the third party, formation of indivisible relationship, etc., the right to collateral security in the name of the third party is also valid (see, e.g., Supreme Court en banc Decision 9Da4894

In full view of the overall purport of the arguments in the testimony of OO witness of the first instance trial and the first instance trial before the establishment of the mortgage of this case, OO was liable for approximately KRW 80 million to the defendant. At the time of the establishment of the mortgage of this case, the plaintiff, OOO, and the defendant lent KRW 80 million to the plaintiff at the time of the establishment of the mortgage of this case, but the plaintiff directly agreed to pay KRW 80 million to the defendant in lieu of the payment of the above debt of YU to Y. The plaintiff prepared a certificate of loan of KRW 80 million to the defendant, and accordingly, it can be acknowledged that the plaintiff was merely liable for the registration of the mortgage of this case under the defendant's name. According to the above facts, the plaintiff's actual lending of money to the plaintiff constitutes the plaintiff's establishment of the mortgage of this case to the defendant and the plaintiff's obligee, and the plaintiff did not have any special reason to be deemed as being liable for the registration of the mortgage of this case to the defendant.

B. Determination as to whether the secured claim of the instant right to collateral security has ceased to exist due to repayment

Comprehensively taking account of the overall purport of the argument in the testimony of the witness of the first instance court and the first instance court, it can be acknowledged that the OO lent the amount equivalent to KRW 80 million to the Plaintiff before and after the registration of the establishment of the mortgage of this case. The evidence submitted by the Plaintiff alone is insufficient to acknowledge that the above borrowed amount was repaid, and there is no other evidence to acknowledge that this part of the assertion by the Plaintiff is without merit.

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 justified as it is in conclusion, and it is so decided as per Disposition.

The presiding judge, appointed judge

Judges Kim Jae-tae

Judges Park Young-young