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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. On October 5, 2015, the Defendant loaned money to C, and obtained from C the registration of the establishment of a mortgage over the maximum debt amount of KRW 222,30,00,000 from C as to D 101 Dong 1302 (hereinafter “instant apartment”).
B. Upon C’s delay in the performance of the above loan obligation, on March 23, 2016, the Defendant received a voluntary decision to commence the auction on the instant apartment from the Ulsan District Court B with the Ulsan District Court B, and the instant apartment was adjudicated to E on January 5, 2017.
C. In the above auction procedure, the Plaintiff demanded a distribution as a lessee of the apartment of this case.
However, on the date of open distribution on February 2, 2017, a court of execution prepared a distribution schedule stating that the sum of KRW 221,117,150 to be actually distributed, except for the Plaintiff’s dividends, shall be distributed to the Defendant who is the mortgagee (hereinafter “instant distribution schedule”). D.
Accordingly, the Plaintiff appeared on the aforementioned date of distribution, and raised an objection against KRW 25 million among the dividends against the Defendant, and filed a lawsuit of demurrer against the Defendant on February 6, 2017, which was within one week thereafter.
[Ground of recognition] Facts without dispute, entry of Gap evidence 2, 7, and 8, the purport of the whole pleadings
2. The assertion and judgment
A. The Plaintiff asserted that the Plaintiff leased the instant apartment without monthly rent at KRW 25 million from C.
The plaintiff has the right to make a preferential repayment of KRW 15 million among the above lease deposit amounting to KRW 25 million, and therefore has the right to receive a preferential repayment of KRW 15 million.
Nevertheless, the instant distribution schedule was prepared by giving priority to the Defendant, instead of paying dividends to the Plaintiff’s claim for return of small-sum lease deposit with preferential right to payment.
Therefore, it is reasonable to reduce the amount equivalent to KRW 15 million with preferential payment right to the Plaintiff out of the amount of dividends against the Defendant, and distribute the amount to the Plaintiff.