1. The instant lawsuit shall be dismissed.

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

1. The Plaintiff’s assertion is a mortgagee of a third-class mortgage holding the land and buildings listed in the separate sheet owned by C (hereinafter “instant real estate”). The Defendant is a creditor who received dividends of KRW 50 million on the date of distribution to the assignee of the National Bank of Korea, a stock company holding the first-class collateral security in the instant real estate.

Of the defendant's claims, general claims should be excluded from the amount of claims secured by the first secured mortgage, and the application of the fluctuation rate on the secured claims should be confirmed. Even if there are grounds, claiming dividends on the total amount of damages for delay would damage the junior secured party.

Therefore, this Court B and D (Dual) auction procedure on the instant real estate owned by C is hereinafter referred to as “the auction procedure of this case”).

In this regard, on February 17, 2016, the court of auction prepared a distribution schedule that distributes the amount of dividends to the defendant to KRW 55,000,000, but the said distribution schedule must be revised as stated in the purport of the claim.

2. Determination on the defense prior to the merits

A. The Defendant’s assertion that: (a) the Plaintiff raised an objection to the distribution on the date of distribution; and (b) filed a lawsuit of demurrer against distribution on February 23, 2016; (c) however, the Defendant asserted that the Plaintiff’s lawsuit is unlawful, as long as the Defendant was paid all the amount of dividends in accordance with the court’s order of withdrawal on February 26, 2016, as the Plaintiff was deemed to have withdrawn on March 2, 2016.

(b) A person who is standing to sue in a lawsuit of demurrer against distribution shall be limited to the creditor or debtor who has appeared on the date of distribution and raised an objection under substantive nature as to the distribution schedule.

(See Supreme Court Decisions 2001Da63155 Decided September 4, 2002; 2003Da27696 Decided August 22, 2003, etc.). Meanwhile, Article 154(1) of the Civil Execution Act provides that “a creditor who has raised an objection against another creditor shall file a lawsuit of demurrer against distribution” and Article 154(3) provides that “a creditor who has raised an objection shall file a lawsuit of demurrer against distribution.”