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1.The judgment of the first instance shall be modified as follows:
The auction of the real estate C with the original branch of the Chuncheon District Court.
Reasons
1. The reasoning for the explanation on this part of the basic facts is the same as that of the judgment of the court of first instance, and thus, they are cited by the main sentence of Article 420 of the Civil Procedure Act.
2. Determination as to the cause of action
A. If the waiver of a claim is entered in the pleading protocol and the preparatory date for pleading protocol, such protocol shall have the same effect as the final and conclusive judgment (Article 220 of the Civil Procedure Act). Since the waiver protocol has the same effect as the final and conclusive judgment of dismissing the claim, res judicata takes effect as to the non-existence of a right
B. Comprehensively taking account of the overall purport of evidence Nos. 8 and No. 9, the Defendant filed a loan claim lawsuit against the Plaintiff on the ground that “the Defendant made a loan claim suit against the Plaintiff on June 1, 201, with the interest rate of KRW 30 million per month and by December 31, 201, with the maturity of payment period of KRW 30 million until December 31, 2011,” but waived the claim during the lawsuit, and the waiver was made on January 19, 2016. ② The Defendant’s waiver of the claim in the instant case constituted the secured claim of the instant mortgage. According to the above acknowledged facts, the Defendant has res judicata effect as to the non-existence of the loan claim, which is the object of the instant loan claim lawsuit and the secured claim in the instant case, and thus, the Defendant has no right to receive dividends in the instant dividend procedure, and the dividend schedule against the Defendant should be deleted.
However, as in the instant case, in a case where the debtor is a plaintiff in a lawsuit of demurrer against distribution, the court should change the distribution schedule for the creditor who did not raise any objection to the distribution (Article 161(2)2 of the Civil Execution Act). Therefore, the deletion of the above distribution amount by the defendant should be added to the junior creditors of the defendant.
(See Supreme Court Decision 9Da53230 delivered on October 10, 2000). Accordingly, the Plaintiff, a debtor, is directly liable for the deletion of the above amount of distribution.