(영문) 춘천지방법원속초지원 2016.08.09 2015가단2166

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(영문) 춘천지방법원속초지원 2016.08.09 2015가단2166

손해배상(기)

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1. The plaintiff's claim is dismissed.

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

Reasons

1. Facts of recognition;

A. The Defendant, while lending KRW 3 billion to the Plaintiff, concluded a mortgage agreement with the Plaintiff (hereinafter “mortgage agreement”) and set up a mortgage claim amount of KRW 3.9 billion with respect to the Plaintiff, supra, C and 103 parcels owned by the Plaintiff (hereinafter “instant real estate”).

B. On August 9, 2007, the Defendant filed an application for real estate auction on September 17, 2007, along with the certificate of loan (the amount equivalent to KRW 100 million, hereinafter “the certificate of loan”) and the certificate of mortgage contract prepared between the Plaintiff and Nonparty D.

C. During the above-mentioned auction procedure, the above court proceeded with the procedure of distributing dividends to the other creditors, including distributing dividends of KRW 75,317,467 out of the amount of dividends of KRW 2,495,431,90 on July 26, 2010 to the defendant, and the specific distribution details are as stated in the attached Table.

Since then, on August 9, 2007, the Defendant promised to first deliver KRW 100 million in the event of the execution of a loan in the name of a cooperative with the right to sell a building on condition of cancellation of a provisional attachment as requested by D with respect to the instant real estate on August 9, 2007. Notwithstanding that the instant loan certificate is not a claim secured by the instant mortgage contract concluded between the Defendant and the Plaintiff, the Defendant applied for an auction of the instant real estate by pretending the instant loan certificate as the secured claim of the instant mortgage contract, and obtained dividends of KRW 75,317,467 in the instant auction procedure, and acquired the instant loan by means of dividends of KRW 75,317,467 in the instant auction procedure, the Defendant was sentenced to a suspended sentence of two years on April 6, 2014 (Seoul Southern District Court Decision 2013Da4443). The said judgment became final and conclusive around that time.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1, Eul evidence 10.

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