dividend from the auction proceeds of the real estate owned to the joint mortgagee; and

In case of distributing the auction price, it shall be preferentially distributed to the joint mortgagee from the auction price of the real estate owned by the debtor, and it shall be additionally distributed from the auction price of the real estate owned by the surety or the third acquisitor only if there is a shortage.

Article 24 of the National Tax Collection Act

2015dan61761 Decided an objection to the distribution

KimA

Korea

on October 25, 2016

on January 20, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Of the distribution schedule prepared by the above court on November 25, 2015, the Seoul Southern District Court’s 2014TTTW 24041, deleted the dividend amount of KRW 0,000,000 against the Defendant and corrected that the Plaintiff distributes KRW 0,000,000 to the Plaintiff.

1. Basic facts

A. On June 18, 2001, NaCC, the president of the former BB Group, purchased from the non-party KimF the Guro-gu Seoul Metropolitan Government 000-00 m20,000 m2 (hereinafter referred to as the “instant land”) in the name of NaD9/10 m2 with respect to the instant land on June 20, 2001, and completed the registration of ownership transfer with respect to NaD9/10 m2 with respect to NaD9/10 m2 with respect to NaE 1/10 m20 m2 under the name of NaD and NaD (hereinafter referred to as “the instant building”). The GG Construction under the name of NaD and NA, which was registered as NaD and MaE, was carrying out the business of constructing and selling HH (hereinafter referred to as “the instant building”).

B. On October 7, 2004 after the completion of the construction of the instant building, registration of preservation of ownership with DoD9/10 shares and DoD9/10 shares in each sectional ownership, respectively, was incorporated into land which is the object of the site ownership of each section for exclusive use.

C. Of the instant building, the registration of the ownership transfer was completed under the name of the Plaintiff, the wife of the EE on March 8, 2010 for the reasons of the purchase and sale on March 26, 2010, the registration of the establishment of the ownership of the II Livestock Cooperatives (hereinafter referred to as the “II Livestock Cooperatives”) with the debtor as the plaintiff and with the maximum debt amount different from each household (hereinafter referred to as the “II Livestock Cooperatives”), and on the 20th of the same month on the 20th of the same month, the registration of the establishment of the mortgage of the II Livestock Cooperatives (hereinafter referred to as the “II Livestock Cooperatives”) with the debtor as the joint security and with the debtor as the maximum debt amount of KRW 250 million in the name of the Kim JJ as the plaintiff.

D. As of October 21, 2010, the Defendant: (a) filed a lawsuit on October 30, 201 that the instant building and land were the actual owner of NaCC and the title trustee; (b) on January 20, 2012, the Seoul Central District Court 2010Kahap122822 that the said building and land were merely the title trustee; and (c) on January 20, 2012, the Defendant KimAA (the Plaintiff) rendered a judgment that “the Plaintiff shall implement the procedure for the registration of ownership transfer for 17 real estate (including site rights) including the instant household units for the restoration of real estate” with the Defendant NaCC, but the appellate court maintained the above first instance judgment that the instant building was owned by NaCC, but dismissed the Plaintiff’s right to the instant land as the title trustee, the title trustee of the instant land, and the Plaintiff’s right to the instant land acquired the ownership of the instant land.

E. The Supreme Court Decision 2013Da37869 Decided September 12, 2013 rendered that the part of the building among the instant households is owned by the Plaintiff, and that the instant land is owned by the Plaintiff, which became final and conclusive by the Supreme Court’s dismissal of the final appeal on September 12, 2013. The Defendant completed the registration of ownership transfer in the name of NaCC regarding the part of the instant households in subrogation of NaCC on February 11, 2014. The right to site of the instant households was cancelled due to the said final and conclusive judgment. Meanwhile, the Defendant completed the registration of attachment on the part of the building owned by NaCC on the same day.

F. On November 7, 2014, upon the application of the collective securityJ from the mortgagee Kim J, the decision was made on November 7, 2014, and the voluntary auction was conducted. On November 24, 2015, the auction court opened a distribution date on November 24, 2015 to distribute KRW 00,000,000 to Guro-gu Seoul Metropolitan Government Office, a holder of the right to deliver (the pertinent tax), with the second priority of KRW 2,00,000,000,000, which is a collective security (the collective security) in the second order of the second order, distributed each of the remaining amounts to KRW 0,000,000 to Kim JJ, a collective security holder, and distributed each of the remaining amounts to the Defendant, who is a holder of the right to seize, and the Plaintiff did not receive dividends from the Plaintiff within one week, and the Plaintiff did not file a lawsuit against the Plaintiff.

[Reasons for Recognition] Facts that there is no dispute between the parties, Gap evidence Nos. 2, 9, Eul evidence Nos. 1, 2, 5, 6, the purport of the whole pleadings

2. Determination

A. Summary of the plaintiff's assertion

The Plaintiff asserts that the portion of the land among the instant households is one’s own ownership, and that the portion of the land is 40% of the appraised value of the instant households, and that 0,000,000 won paid to the Defendant, which is equivalent to 40% of the 0,000,000 won distributed to the Defendant, should be corrected by deducting the amount from the amount of the Defendant’s dividend and distributing it to himself.

B. Determination

According to the evidence No. 7, it is recognized that the land portion among the appraised values of the instant households is 40%.

However, it is reasonable to view that Article 368(1) of the Civil Act, which provides that "in the event that a mortgage is created on several real estate as security for the same claim, if the mortgage is created on several real estate 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 to the auction of the real estate owned by the debtor, and only if there is a shortage thereof, the auction of the real estate owned by the joint mortgagee shall be preferentially apportioned from the auction of the real estate owned by the debtor, and the auction of the real estate owned by the joint mortgagee shall be additionally apportioned from the proceeds of the auction of the real estate owned by the joint mortgagee (see Supreme Court Decision 2008Da41475, Apr. 15, 2010; Supreme Court Decision 2008Da41475, Apr. 15, 2010; Supreme Court Decision 2013Da2688, Feb. 21, 2013).

According to the above legal principles, ① the portion of the building among the households of this case was owned by NaCC with respect to the property of this case as the debtor, and under the final judgment, Kim J Kim J, and the portion of the land was separated from the ownership of the plaintiff. This is the same as the ownership of a part of several real estate on which joint mortgage is established, and also the ownership of a third party purchaser who acquired the ownership of the part of the building or the plaintiff's creditor who is the debtor, under the condition that joint mortgage is established, the ownership of the land of this case can not be claimed for the transfer of the land of this case to the plaintiff who received the ownership transfer registration due to the contract title trust, but the defendant could not claim for the return of unjust enrichment equivalent to the purchase of the above portion to NaCC and NA, which is the owner of the land of this case, for the purpose of the sale of this case's new auction proceeds under the name of 5% of the real estate market at the time of the sale of this case.

Therefore, since the distribution schedule of this case was prepared properly, the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.