It is difficult to see that the actual principal debtor of the loan subrogated by the defendant is the defendant.

Since the Plaintiff has made a direct repayment of the loan to the Defendant, and the Plaintiff provided its own real estate as security from the loan agreement, the interest in the loan is greater. In criminal cases, the prosecutor takes a disposition of non-guilty charges against the Defendant by deeming the actual debtor of the loan as the Plaintiff, which is difficult to deem the actual principal debtor of the loan of this case as the Defendant

Article 154 of the Civil Execution Act: Lawsuit of Demurrer, etc.

2015 Gohap 14063 Demurrer against distribution

KimA (Supplementary Intervenor to Plaintiff: Republic of Korea)

ParkB

August 17, 2016

September 7, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

In the Seoul Central District Court's 2014Mota, 16969, the amount of dividends against the defendant among the dividend table prepared by the same court on May 21, 2015 shall be corrected to KRW 664,519,096,00.

1. Basic facts

A. On May 8, 2009,CC Co., Ltd. (hereinafter referred to as "CC") entered into a credit transaction agreement (hereinafter referred to as "the instant loan") with an OOO deposit bank (hereinafter referred to as "OO deposit bank"). On May 8, 2014, in order to secure the obligation to repay the principal and interest ofCC companies under the above loan agreement, the establishment and registration of the right to collateral security (hereinafter referred to as "mortgage security agreement") was completed with the OOOOOOO of Seoul, 201, 79, 806 (hereinafter referred to as "OO apartment") with the maximum debt amount of 1.3 billion won as to the instant real property (hereinafter referred to as "the instant real property").

B. On May 7, 2012, on the registration of the instant right to collateral security, an additional registration of the transfer of the right to collateral security in the name of the OO Savings Bank (hereinafter “OO Savings Bank”) was completed due to the registration of the decision on contract transfer as of January 3, 2012.

C. On April 19, 2013, Non-Party GabD paid KRW 12,496,660 out of the principal and interest of the instant loan, and the Defendant subrogated KRW 43,730,698 out of the principal and interest of the instant loan on May 8, 2013. On June 19, 2014, the Seoul Central District Court 2014, around 16969 (hereinafter referred to as the Seoul Central District Court 2014) started the voluntary auction procedure for the instant real estate.

D. On June 30, 2014, the Defendant: (a) subrogated to the OO Savings Bank for all remaining principal and interest of 564,830,809 won; and (b) on the same day, the supplementary registration prior to the right to collateral security under the name of the Defendant, which is the ground for registration of the said subrogation, was completed. In the real estate auction case, on May 21, 2015, the execution court prepared a distribution schedule with the content that, in paying dividends of KRW 2,67,356,850 (hereinafter referred to as “instant dividends”); (b) the Plaintiff, the owner of real estate, was present on the date of distribution and raised an objection against the Defendant’s dividends; and (c) on May 28, 2015, the Plaintiff, who is the owner of real estate, filed the instant lawsuit on May 28, 2015 [based on recognition], without dispute, the purport of the entire pleadings and arguments by Party A as a whole.

2. The assertion and judgment

A. Each argument of the parties

1) The plaintiff and the plaintiff assistant intervenor's assertion

CC is an individual company of the defendant, and the loan of this case is actually used by the defendant. Thus, the payment of the loan of this case by the defendant is merely a repayment of its own debt. Nevertheless, in collusion with OO Savings Bank, the defendant succeeded to the status as an applicant creditor of OO Savings Bank and received distribution. The dividend of this case is illegal as it is against the defendant who has no claim under the substantive law.

2) The defendant's assertion

Since the Plaintiff used the instant loan, the actual principal debtor is the Plaintiff, and the Defendant succeeded to the status of the creditor who had been an OO Savings Bank through subrogation, the dividend of the instant case is lawful.

B. Determination

1) The following circumstances are acknowledged in full view of each of the descriptions and the purport of the whole arguments and arguments by Gap's evidence of Nos. 1 through 11, Gap's evidence of No. 1, 1, Eul's evidence of No. 1 through 4, 7, and 8 (including each of the numbers).

① Of the loan amounting to KRW 989,068,750, KRW 175,00,00 was remitted to the account of an OO corporation that supplied alcoholic beverages to a entertainment establishment operated by the Plaintiff on May 8, 2009, and the remainder of KRW 814,068,750 was withdrawn by cashier’s checks after being transferred to another account of CC company on the same day. There are no circumstances to deem that the Defendant or CC was directly using the above loan. ② The Plaintiff made a loan to the above account on July 8, 2009, KRW 18,68,500, KRW 500, KRW 18,500, and KRW 18,500, KRW 188,500, and KRW 18,595,100, which is the Plaintiff’s husband’s interest in the instant loan agreement with the Plaintiff to the effect that the Defendant was able to pay the Plaintiff’s loans directly to the Plaintiff, the joint guarantor’s interest in the instant loan agreement.

2) In light of the above circumstances, the evidence submitted by the Plaintiff alone cannot be deemed as the actual principal debtor of the instant loan, and there is no other evidence to acknowledge this differently, and 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.