(영문) 춘천지방법원속초지원 2016.07.19 2015가단1798

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(영문) 춘천지방법원속초지원 2016.07.19 2015가단1798

배당이의

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1. The plaintiff's claim is dismissed.

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

Reasons

1. Basic facts

A. On May 31, 201, the Defendant registered the establishment of a mortgage over the real estate indicated in the separate sheet owned by the Plaintiff (hereinafter “instant real estate”) with respect to the real estate indicated in the separate sheet owned by the Plaintiff (hereinafter “instant real estate”).

B. On July 13, 2015, the Defendant filed an application for voluntary auction of the instant real estate, and accordingly, prepared a distribution schedule that distributes the amount of KRW 30 million to the Defendant, who is the mortgagee of the right to collateral security (hereinafter “instant distribution schedule”).

C. On July 13, 2015, the Plaintiff appeared on the date of open distribution, and raised an objection against the total amount of dividends to the Defendant, and filed the instant lawsuit on July 15, 2015, which is seven days or less.

Meanwhile, the secured debt of the right to collateral security established by the Defendant on the instant real estate is a loan claim of KRW 30 million against the Plaintiff on June 1, 2011, which is forged by Nonparty D’s arbitrary seal imprinting the Plaintiff’s seal impression.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 9, purport of the whole pleadings

2. Determination

A. The gist of the Plaintiff’s assertion argues that since the Defendant, who did not have any obligation between the Plaintiff and Nonparty D, completed the registration of the establishment of a neighboring mortgage on the instant real estate based on the documents forged by Nonparty D, the said right to collateral security is null and void. Therefore, the instant distribution schedule should be revised by removing the amount of dividends of KRW 30 million against the Defendant and distributing the amount of KRW 30 million to the Plaintiff.

B. The res judicata of a final and conclusive judgment does not allow a subsequent suit identical to the subject matter of the previous suit, and the subject matter of the subsequent suit is not the same as that of the subject matter of the previous suit.

Even if the judgment on the subject matter of a prior suit is a prior question or contradictory one.

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