Whether a person not qualified may file a lawsuit of demurrer against distribution

A third party not qualified may not raise an objection to the distribution.

Article 151 (Objection against Distribution Schedule)

1. The plaintiff's claim is dismissed.

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

On October 18, 2006, this Court deleted the dividend amount of KRW 3,670,390 against the defendant from among the dividend table prepared by this Court concerning the auction cases of automobile rent 4215, 2005, the amount of dividends against the plaintiff is corrected as the amount of dividends against the plaintiff.

1. Basic facts

(1) On December 21, 2001, the Plaintiff entered into a motor vehicle lease agreement with ○○○○ Car Co., Ltd. (hereinafter “○○○○○ Car”) with the acquisition cost of 110,440,000 won for 100,000 won for 100,000 won for 100,000 won for 36 months from June 11, 2004, which is the date of receipt of the leased object, and 2,125,000 won for monthly rent. On January 10, 2002, the Plaintiff set up a mortgage on the said 10 motor vehicles.

(2) On November 22, 2005, the Plaintiff filed an application for an automobile auction with respect to the ○○○○○○○○○○○ SM 520 Motor Vehicle (hereinafter “motor vehicle”) among the above 10 motor vehicles, as the court below 2005T 4215.

(3) In the above voluntary auction procedure, the Plaintiff and the mortgagee, and the Defendant reported each right as a taxation right holder and demanded a distribution.

(4) On October 18, 2006, when a court of execution distributes the amount of KRW 10,107,922 after deducting the execution cost from the sale price on the date of distribution, the court of execution prepared a distribution schedule to distribute the amount of KRW 3,542,360, and KRW 3,542,360, and KRW 3,670,390, and KRW 2,895,172, to the Plaintiff, a mortgagee, who is the right of seizure, among taxes for which the court of execution requested to deliver to the head of ○○○○○○○ (the pertinent tax) who is the right of seizure, in the second order.

(5) The Plaintiff’s agent was present on the date of distribution as a creditor and mortgagee, and raised an objection against the total amount of dividends to the head of ○○ Tax Office, and then filed the instant lawsuit.

2. Judgment on the plaintiff's assertion

A. Summary of the assertion

If the Plaintiff raised an objection to a distribution as the owner, the Plaintiff asserts that the Defendant, as well as the Defendant, also filed a lawsuit of demurrer to distribution against the head of ○○○○○○○ City, did not file a lawsuit of demurrer to distribution with the owner as the owner. On the other hand, on the other hand, since the real ownership of the instant automobile, which is a facility leased object, is the Plaintiff, the claim for the delivery of the value-added tax in arrears by ○○○ Car, not the pertinent tax on the said automobile, was unlawful, and it was argued

B. Determination

Therefore, it is divided into cases where the plaintiff filed a lawsuit of this case as the owner and brought a lawsuit as a mortgagee.

(1) If an action is brought against an owner:

A person who has standing to sue in a lawsuit of demurrer against distribution shall be limited to the creditor or debtor who has made an objection on the distribution schedule by attending the date of distribution on the date of distribution, and the third party is not an interested party in the auction procedure, even in cases where the goods owned by the third party are mistaken as owned by the debtor, and at the auction as the subject matter of compulsory execution, the third party does not have the right to make an objection on the distribution schedule. Therefore, even if the third party appeared on the date of distribution and raised an objection against the distribution schedule, this is illegal and illegal, and there is no standing to sue in a lawsuit of demurrer against distribution against the third party (Supreme Court Decision 2001Da63155 Decided September 4, 2002). If the plaintiff filed the lawsuit in this case as the owner of the instant automobile, the standing

(2) If a creditor or collateral security holder files a lawsuit

The priority between a mortgage debt and a tax claim is determined by the later between the date of registration of establishment of a mortgage and the statutory date of a tax claim.

However, according to the above facts, the court of execution can be found to have preferentially distributed only KRW 3,670,390 of value-added tax on December 1, 2001, which was earlier than January 10, 2002, which was the date of registering the establishment of a mortgage on the instant motor vehicle among the Defendant's taxation claims. Thus, the preparation of the distribution schedule of this case is lawful.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed for reasons.