Seoul Central District Court 2011 Gohap94016 ( December 20, 2011)

Since it was seized after the completion period to demand a distribution, it cannot be deemed that the right to receive a distribution has been acquired.

Since Defendant Republic of Korea failed to obtain the right to receive dividends by means of the seizure after the completion period to demand a distribution, the effect of the seizure cannot be asserted, and the right to the debtor's dividends or the right to the owner's earned surplus cannot be viewed as subject to the seizure.

2012Na17020 Demurrer against distribution

The AA

Three Overseas of the Republic of Korea

Seoul Central District Court Decision 2011Gahap94016 Decided December 20, 201

June 12, 2012

July 26, 2012

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

3. The phrase " September 11, 201" in paragraph (1) of the order of the court of first instance shall be corrected as " September 1, 201";

1. Purport of claim

Seoul Central District Court Decision 2007Mata2481 On September 1, 2011, the Act

Of the distribution schedule prepared by the source, the amount of dividends to the plaintiff shall be KRW 000, KRW 000 for the defendant's Republic of Korea, KRW 000 for the third-order dividend amount, KRW 000 for the defendant's Republic of Korea, KRW 000 for the third-order dividend amount to the defendant's Seocho, KRW 000 for the third-order dividend amount to the defendant's Seocho-gu, KRW 000 for the third-order dividend amount to the defendant's Republic of Korea, KRW 000 for the third-order dividend amount to the defendant's Republic of Korea, and KRW 400 for the defendant

2. Purport of appeal

The judgment of the first instance is revoked and all of the plaintiff's claims are dismissed.

The reasoning for this Court’s reasoning is as follows: (a) the Defendants’ assertion in the trial is identical to the reasoning for the first instance judgment, except for addition of the judgment as to the matters alleged in the second instance; and (b) thus, (c) the same is acceptable pursuant to the main text

(a) Effect of preserving claims for seizure;

Defendant 1 may seize any real estate in the process of the auction procedure, and the validity of the preservation of the claim should also be recognized. The Defendants’ seizure of the real estate in this case and the remaining surplus funds or dividends to KimCC, the debtor, have the effect of preserving claims against the seizure of the real estate in this case. Thus, the Plaintiff asserts that the Plaintiff may not assert any right to the seizure. However, a person who already seized the real estate in progress of the auction procedure has only the right to receive a distribution of the proceeds of auction under the above seizure unless he has the status of creditor of the request for auction due to the cancellation of senior auction, etc. However, Defendant Republic of Korea and the PPP did not acquire the right to receive a distribution (the time of the PPP) only after the completion of the demand for distribution (the time of the PPP), and the above Defendants were not entitled to the seizure of the real estate in this case, and thus, they did not assert any right to receive the above dividends or the validity of the debtor’s right to the dividends in this case as to the dividends in this case.

(b) Effect of prohibiting the disposition of seizure;

The Republic of Korea and the Pakistan, on August 31, 2010, on the instant real property (PP)

(C) The Plaintiff, who subsequently completed the registration of ownership transfer on the instant real estate by virtue of the effect of the prohibition of disposition by the seizure (Defendant Republic of Korea) on September 7, 2010, cannot oppose that the said Defendants acquired the ownership effectively. Thus, even if the said Defendants were unable to receive dividends because they did not make a request for delivery until the period of demand for distribution, the Plaintiff cannot receive dividends from the said Defendants.

However, in a voluntary auction of real estate, a person who has acquired a right after completing the registration of ownership transfer after the registration of the decision to commence the auction of real estate was made cannot claim the acquisition of the right against the creditor of the request for auction. However, other participants, etc. who participated in the execution after the registration of the above entry, and third parties can claim the effective acquisition of right. Therefore, the balance remaining after the secured claim, etc. out of the auction price should be delivered to the above third purchaser. This is true even if the third purchaser failed to obtain the status as an interested party in the auction procedure because he did not report his right to the auction court (Supreme Court Order 90Meu2403, Apr. 10, 1990). The plaintiff did not acquire the status as an interested party in the auction procedure (Supreme Court Order 90Meu2403, Apr. 10, 1990). The plaintiff is acknowledged prior to the completion of the registration of ownership transfer of the real estate of this case on July 13, 2011, the above defendants can only claim the above third party's claim for the ownership transfer in the auction procedure of this case.

C. Necessity of protecting plaintiffs

The defendants, when the plaintiff acquired ownership of the real estate of this case, as to the above real estate

It was well-known that there had been a decision to commence voluntary auction, and that the defendant Republic of Korea and Pakistan had already been seized.

As such, the Plaintiff asserts that there is no need to protect the Plaintiff. Although the right to acquire by completing the registration of ownership transfer with respect to the instant real estate in the process of voluntary auction is limited to the extent that it does not go against the validity of the preceding seizure, etc., the right to acquire by completing the registration of ownership transfer with respect to the instant real estate in the process of voluntary auction, there is still a right to the remainder after the lawful distribution, and the surplus still exists. Therefore, there is no ground to protect the Plaintiff’s right on the ground that the Plaintiff acquired ownership with the preceding

(d) Means to evade debts;

The Defendants, in preference to the Defendants, are creditors who did not make a request for delivery or demand for distribution until the end of the period for demand for distribution, and have acquired ownership after the decision on commencing the auction procedure, against the surplus of the auction proceeds.

The Defendants, as creditors, exercise their rights, such as provisional seizure, against surplus funds.

As such, the debtor cannot transfer the ownership of the real estate in the auction procedure to a third party.

As a means of evading obligations. However, even though a creditor in a real estate auction procedure has a right to receive a lawful distribution through the procedures such as seizure, demand for distribution, request for delivery, etc., it cannot be deemed unreasonable to deem that a third party who acquired ownership after the commencement of auction decision and seizure, etc. failed to abide by the aforementioned procedures, thereby acquiring surplus funds of the auction proceeds, merely due to an unexpected circumstance. Even if such result is expected and the ownership of real estate in the auction procedure is transferred to a third party, there is no reasonable ground to restrict the third party’s right to protect creditors who have failed to exercise their rights. This part of the Defendants’ assertion is also difficult.

(e) Fraudulent act;

The Defendants concluded that the instant real estate sales contract between the Plaintiff, the debtor KimCC, and the Defendant had already been decided to commence the sale of the said real estate and was seized by the State, etc.

Since it is a fraudulent act causing the reduction of debtor's responsible property, it must be revoked.

The Plaintiff asserts that the ownership of the instant real estate can not be asserted. However, the right to revoke the fraudulent act can be exercised as a lawsuit, and as long as the right to revoke the fraudulent act is not revoked as a fraudulent act, it cannot be asserted as a defense against the exercise of ownership. Therefore, the Defendants’ assertion on a different premise is without merit without further review.

F. Identity of Defendant Seocho-gu’s request for delivery

Upon the commencement of the real estate auction procedure on January 23, 2007 with respect to the apartment before the reconstruction of the real estate in this case, which was owned by KimCC, the defendant Seocho-gu intended to request the payment of local tax bonds to KimCC on July 14, 2010, which was before the completion date of the distribution demand, but the above apartment ownership was entrusted in the future of the OO apartment reconstruction association, and the delinquent taxpayer was inevitably entrusted to the above reconstruction association, and submitted a request for the delivery of local tax. Since the reconstruction was completed and the ownership was restored to KimCC, the delinquent taxpayer was submitted again on August 16, 201 as KimCC, the above two requests for delivery should be deemed the same. However, according to the statement under subparagraph 4 above, the defendant's claim for the delivery of the distribution procedure in this case was never submitted to the Seocho-gu reconstruction association on July 23, 2010, and there was no reason to view that the above request for the delivery of the above portion of the real estate in this case had already been submitted.

(g) Fictitious sale;

The defendant Seocho-gu asserts that the sale of the real estate in this case between the plaintiff, KimCC and the defendant is invalid because it is the most trade by transfer of the right for the purpose of lawsuit or by false conspiracy. However, since there is no sufficient evidence to acknowledge the above assertion, this part of the above defendant's assertion is without merit. Since the judgment of the court of first instance is justifiable, all appeals by the defendants are dismissed without merit, and part of the decision of the court of first instance