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1. The plaintiff's primary claim and the conjunctive claim are all dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. On May 29, 2013, the Plaintiff acquired the right to claim a loan against C and the right to collateral a mortgage on the instant apartment owned by the National Bank for securing the right to claim a loan against C, and filed an application for voluntary auction commencement on May 29, 2013, and received a voluntary decision to commence the auction from the
B. In the above auction procedure, on January 23, 2014, the distribution schedule (hereinafter “instant distribution schedule”) was prepared in the order of 16,000,000 won, and 739,200 won, and 3rd Incheon Bupyeong-gu, Incheon, the holder of the right of delivery (the pertinent tax), who demanded a distribution as a small lessee on the date of distribution. The Plaintiff appeared on the above distribution date, and stated an objection against the Defendant’s dividends, and filed a lawsuit of demurrer against the distribution on January 28, 2014, which is within one week thereafter.
[Ground of recognition] Facts without dispute, Gap 1 to 4 evidence, Gap 7 evidence, and the purport of the whole pleadings
2. Determination:
A. The distribution schedule of this case where the Defendant recognized the Defendant as a small lessee and distributed KRW 16,00,000,000 as it is merely the most lessee who entered into the instant lease agreement with C in a false manner, should be revised as stated in the primary purport of the claim.
Preliminaryly, C entered into the instant lease agreement with respect to the apartment of this case, which is the only real estate, with excess of debt, and thus, it should be revoked as it constitutes a fraudulent act, and the said distribution schedule should be revised as stated in the preliminary claim for restitution.
B. In a lawsuit of demurrer against a distribution, the plaintiff does not assert or prove the facts constituting the grounds for the objection against the distribution, and the creditor who has filed an objection to the distribution by asserting that the other party's claim is disguised, shall bear the burden of proof therefor.
(Supreme Court Decision 97Da32178 delivered on November 14, 1997).