Seoul Central District Court 201 Gohap94184 ( October 22, 2012)

The portion exceeding the maximum amount of claims of the right to collateral security cannot be deemed to be entitled to receive a dividend.

Unless there is any assertion or proof as to the fact that the Plaintiff made a demand for distribution with respect to the part exceeding the maximum debt amount of the right to collateral security or otherwise satisfies the necessary requirements, it cannot be deemed that the Plaintiff has the right to receive a distribution exceeding the maximum debt amount of the right to collateral security.

2012Na33565 Demurrer against distribution

AAA Loan Limited Liability Company

Seocho-gu Seoul Metropolitan Government Three Overseas Residents

Seoul Central District Court Decision 2011Gahap94184 Decided March 22, 2012

October 30, 2012

November 22, 2012

1. The plaintiff's appeal against the defendants is dismissed in entirety.

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

The judgment of the first instance shall be revoked. The dividends of the first instance against the defendant, Seocho-gu Seoul Central District Court (Seoul Central District Court 2007Mata2481), among the dividends table prepared by the same court on September 1, 201, shall be KRW 000,000, and the dividends of the first instance against the defendant, KRW 00,000,000, and KRW 300,000,000, for the defendant, the dividends of the third priority dividends to the defendant, for the defendant, were KRW 00,000, and KRW 00,000, for the defendant ChoB, for the dividends of the defendant, and KRW 00,000, for the plaintiff, shall be corrected respectively.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation on this case is as follows, except for addition of the following judgments with respect to the matters asserted by the plaintiff on the island, so the reasoning for the judgment of the court of first instance is as stated in the main sentence of Article 420 of the Civil Procedure Act.

2. Additional determination

A. The plaintiff's assertion

A lawsuit of demurrer against distribution is sought for the change of the ownership of the distribution portion relatively among the plaintiff and creditors who are the defendant, and the remaining balance after allocating to the plaintiff the amount equivalent to the maximum debt amount of the right to collateral security among the proceeds from the sale of the distribution procedure in this case must be distributed to the plaintiff without need to consider the third acquisitor (CC).

B. Determination

In a lawsuit of demurrer against a distribution, where it is recognized that the defendant's claim does not exist in a lawsuit of demurrer against a distribution, it is unnecessary to consider the other creditor's claim that has not been raised in calculating the amount of distribution which reverts to the plaintiff among the disputing dividends (see, e.g., Supreme Court Decision 2000Da41844, Feb. 9, 201). The plaintiff's claim amount cannot be deemed the plaintiff's claim amount beyond the limit of the plaintiff's claim amount or the right to receive dividends (see, e.g., Supreme Court Decision 98Da3818, May 22, 1998). Meanwhile, in order to receive dividends with respect to a claim that has not been effective as preferential repayment, the request for auction based on the right to claim the right to claim the distribution or the right to receive dividends exceeding the maximum claim amount should not be deemed to have satisfied the requirements of Article 88 (1) of the Civil Execution Act separately with respect to the claim that exceeds the maximum claim amount (see, e.g., Supreme Court Decision 97Da28168, etc.

3. Conclusion

Then, the plaintiff's claim against the defendants shall be dismissed in its entirety due to the reasons, and the judgment of the court of first instance is just in its conclusion, and the plaintiff's appeal against the defendants shall be dismissed in its entirety as it has no reason, and it is so decided as per Disposition.