2017 Gohap21934 Demurrer against distribution

A Housing Association

1. B

2.C

3.D

4.E

5.F

6.G

7.H

8.I

9.J

10. K;

October 19, 2017

November 16, 2017

1. All of the instant lawsuits are dismissed.

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

Defendants in the distribution schedule prepared on March 23, 2017 by the court with respect to this Court L/C case

The exclusion of dividends shall be changed to dividends in accordance with the order of claims and the ratio of claims of each creditor.

1. Basic facts: Attachment, collection order, or provisional attachment against the Plaintiff’s claim by the Defendants

1) On December 30, 2016, Defendant B, based on the original copy of the Supreme Court Decision 2015Da143482 Decided November 24, 2016 (hereinafter referred to as “instant judgment”), which rendered a declaration of provisional execution against the Plaintiff, issued a provisional seizure and collection order to KRW 43,257,177, out of the Plaintiff’s right to claim the withdrawal of deposited goods against the Republic of Korea by this Court Decision 2016Do10463, Dec. 30, 2016, Defendant B transferred the provisional seizure to the Republic of Korea, and the above seizure and collection order was served on January 4, 2017.

2) The remaining Defendants, except Defendant B, received the provisional attachment order with the Plaintiff as follows, and the above order was served on the third obligor. On August 2, 201. On 201, the Defendant 3 Obligors (Service Date). On August 26, 2016, Seoul 2016Kadan1924, 50,000,00 court No. 20162, 206, 2029, 1924, 2016, 206, 2029, 206, 2016, 2029, 2024, 205, 206, 2016, 206, 2016, 206, 306, 205, 206, 2024, 206, 206, 205, 206, 205, 361924,

B. Deposit of the land trust company against the non-party

Pursuant to Article 248(1) of the Civil Execution Act on November 16, 2016 and Article 291 of the Civil Execution Act, the land trust company against Nonparty was deposited in the Seoul Central District Court No. 265531,035,318,037 won as deposit money in Seoul Central District Court in accordance with Article 291 of the Civil Execution Act.

C. Plaintiff’s objection to the Plaintiff’s distribution schedule and the instant lawsuit

On March 23, 2017, the distribution schedule was prepared by the Defendants on the date of distribution of the L/L distribution procedure case in which the Defendants received the total amount of each of the above claims. The Plaintiff, a debtor, appeared on the said date of distribution and raised an objection against the amount of claims and the amount of dividends of the Defendants, and filed the instant lawsuit on March 28, 2017.

[Ground of recognition] No dispute, Gap evidence Nos. 1, Eul evidence Nos. 7 and 8, the records of which are clear, and the purport of the whole pleadings

2. The plaintiff's assertion

The plaintiff and the non-party (tentative name) M District Housing Association (hereinafter referred to as the "Non-party Housing Association") are distinguished from each other.

is an organization of this State.

However, in the process of distributing dividends in this court, the debtor is the person who has the right to seize and collect the defendant B, and the debtor's claims as the creditor of provisional seizure are related to the non-party partnership.

Therefore, this Court seeks to exclude the Defendants who have no title to receive dividends from distribution among the distribution schedule prepared by this Court, and to change the distribution to the distribution in accordance with the order of claims and the ratio of claims of each creditor.

3. Ex officio determination on the legitimacy of the instant lawsuit

In a case where an obligor raises an objection to a distribution schedule prepared in the distribution procedure, the obligor himself/herself, i.e., a creditor who has an executory title, who has raised an objection to the existence or scope of a claim, shall exclude the executory power of the executory title, and thus, the obligor cannot file a lawsuit of demurrer and file a lawsuit of demurrer against a distribution (Article 154(2) of the Civil Execution Act). A judgment with a declaration of provisional execution may not file a lawsuit of objection unless the judgment becomes final and conclusive (Article 44(1) of the Civil Execution Act). However, an obligor may exclude the executory power of the judgment by disputing the existence or scope of a claim by an appeal, and may be subject to a stay of execution. As such, a lawsuit of demurrer against a judgment with an executory title cannot be filed, and the obligor may not file a lawsuit of objection against a creditor who has an executory title of the judgment (see, e.g., Supreme Court Decisions 2013Da86403, Apr. 23, 2015).

2) Facts of recognition

On the date of distribution, Defendant B with an authentic copy of the judgment related to this case, which was declared provisionally;

The facts of objection to the distribution of related dividends are as seen earlier, and the judgment related to this case was not finalized as of the closing date of pleadings in this case, which is significant in this court.

3) Determination

In light of the above facts in light of the above legal principles, the plaintiff may, by filing an appeal against the related judgment of this case, exclude the executory power of the judgment by disputing the existence of the claim against the plaintiff of this case, and may be subject to a stay of execution. However, the plaintiff cannot file a lawsuit of demurrer against the distribution for the purpose of diversification of the existence or scope of the claim of the defendant B ( even if the related judgment of this case becomes final and conclusive after the prosecution, there is only

Ultimately, the Plaintiff’s lawsuit against the Defendant B is unlawful.

B. Whether the lawsuit against the remaining Defendants other than Defendant B is legitimate or not

Article 154(1) of the Civil Execution Act provides that "A debtor who has raised an objection against a creditor (excluding provisional seizure creditors) who does not have an executory exemplification of executive titles shall file a lawsuit of demurrer against distribution" and excludes provisional seizure creditors from the other party to a lawsuit of demurrer against distribution filed by a debtor.

This means that the Civil Execution Act provides that the amount of dividends to a creditor of provisional attachment shall be deposited without asking whether to object to distribution in the distribution procedure (Article 160(1)2 of the Civil Execution Act), and that when a creditor of provisional attachment acquires a final judgment executory power in the lawsuit on the merits or other equivalent protocol of protocol, or other title of execution, deposit money shall be paid to the creditor of provisional attachment, or when the non-existence of a claim of provisional attachment becomes final in the lawsuit on the merits or the provisional attachment execution is revoked due to revocation of a decision of provisional attachment, etc. (Article 161

(2) Paragraph (2), Supreme Court Decision 2011Da75478 Decided June 13, 2013, Supreme Court Decision 2003Da32681 Decided April 9, 2004, etc.). In order for a creditor holding a provisional attachment to receive the dividends deposited above, the creditor holding a title of execution shall obtain in order to receive the said deposited dividends. As such, the debtor is exempted from raising an objection or revocation against the above provisional attachment or disputing the existence and scope of the debt in the principal lawsuit, etc. instituted by the creditor holding a provisional attachment, and there is no need to raise an objection against the provisional attachment creditor as to the dividend.

Ultimately, there is no profit to file a lawsuit of demurrer against the distribution against the provisional seizure creditor.

2) Determination

However, as seen earlier, the Plaintiff filed a lawsuit of demurrer against the instant objection against the Defendant C, D, E, F, G, H, I, J, and K, as the provisional attachment obligee.

Ultimately, the Plaintiff’s lawsuit against the said Defendants is unlawful as there is no legal interest.

4. Conclusion

Therefore, all of the lawsuits of this case shall be dismissed, and it is so decided as per Disposition.

Judges Kim Yang-ho

판사 임샛별

Judges Go-man