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1. The plaintiff's appeal and the conjunctive claim added in the trial are all dismissed.
2. The appeal costs are assessed against the Plaintiff.
Reasons
1. Basic facts
A. On January 26, 2015, the Plaintiff completed the registration of the establishment of a neighboring mortgage of KRW 60,000,000 on the debtor, E-mortgager, Plaintiff, and maximum debt amount with respect to the Seongbuk-gu Seoul building D (hereinafter “instant real estate”).
B. The F shall complete the registration of transfer of ownership on October 15, 2015, based on sale in the name of E on October 6, 2015.
C. On December 24, 2016, the Defendant drafted a lease agreement with F to lease the instant real estate by setting the lease deposit amount of KRW 30,000,000 and the term of lease from January 20, 2017 to January 19, 2019 without monthly rent.
(hereinafter “instant lease agreement”). D.
With respect to the instant real estate, G Union, a senior mortgagee, against the Plaintiff holding the right to collateral security of KRW 156,00,000 with respect to the maximum debt amount, filed an application for a successful auction of the instant real estate with the Seoul Northern District Court H on November 6, 2017. On June 26, 2018, I paid the price upon obtaining a decision of permission for sale, and acquired the ownership of the instant real estate.
E. On July 30, 2018, the above auction court: (a) drafted a distribution schedule of KRW 30,000,000 on the ground that the Defendant is a small-sum lessee, and (b) distributed KRW 127,006,087 to G Union, a senior mortgagee, respectively; and (c) was excluded from the distribution of dividends as the second mortgagee.
Accordingly, the plaintiff raised an objection to the total amount of the defendant's dividends among the above dividend table.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, and 3, the purport of the whole pleadings
2. Judgment as to the main claim
A. The gist of the cause of the claim is that the Plaintiff, around the other hand, did not have concluded a lease contract with respect to the instant real estate, prepared a false lease contract for the purpose of collecting credit against F and received the distribution in the above auction procedure. Thus, the Plaintiff received 30,000 dividends without any legal ground.