2011 Single 378555 Demurrer against distribution

Na○

Sung-nam City Subdivision-gu

[Defendant-Appellee] Defendant 1

○ ○

Seoul Central Central Government

March 30, 2012

April 27, 2012

1. The plaintiff's claim is dismissed.

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

In the Seoul Northern District Court 2010 other, the Seoul Northern District Court 1340 Doo real estate auction case, the above court on July 2011.

25. The amount of dividends to the defendant among the dividend table prepared, as KRW 10,00,00,000, to KRW 0,000, and against the plaintiff.

The amount of dividends shall be corrected from KRW 131, 828, 331 to KRW 141,828,331.

1. Basic facts

A. On July 31, 2008, No. 10000 received on July 31, 2008, as to the real estate listed in the separate sheet (hereinafter referred to as “the instant real estate”) owned by ○○○○○○, the debtor completed the registration of creation of a neighboring mortgage with the maximum debt amount of KRW 170,00,00 on the ground of the contract to establish a mortgage (hereinafter referred to as “instant mortgage contract”).

B. After that, on October 21, 2008, the Plaintiff transferred the secured debt of the above secured debt from Ma○○○ on which the Plaintiff completed a supplementary registration with the purport of transferring the above secured debt to 120000 on October 22, 2008.

C. On July 19, 2010, the Plaintiff received a voluntary decision to commence the auction at around 2010 square meters on the instant real estate.

D. In the above auction procedure on January 20, 2010, the Defendant demanded the distribution by attaching a lease agreement to the effect that, from Lee○○, the owner of the instant real estate, the Defendant leased one column of the underground bank of the instant real estate in KRW 10,00,000, the lease deposit amount of KRW 10,000.

E. In the above auction procedure, the above court set up a distribution schedule that distributes the amount of KRW 417,294,476 to ○○○○○○○○, a small amount of KRW 16,00,00,000, and KRW 13,000, and KRW 100,000, and KRW 10,000, and KRW 100,000, the lessee’s maximum amount of credit, and KRW 30,00,000, and KRW 186,46, and 145, the total amount of credit, to the ○○ Credit Union, a mortgagee, and KRW 170,00,00, and KRW 131,828, and KRW 331, out of the total amount of credit, to the Defendant.

F. Accordingly, the Plaintiff raised an objection against the total amount of dividends distributed between the Defendant and Gangwon-do.

G. Meanwhile, the Plaintiff filed a lawsuit of demurrer to the distribution against Gangwon ○○ by filing a lawsuit of demurrer to the distribution, and received a favorable judgment of KRW 16,00,000 of the dividend amount of Gangwon ○○, which he/she received. The said judgment became final and conclusive around that time.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 4, 5, Eul evidence Nos. 3 and 21, the purport of the whole pleadings

2. Assertion and determination

A. The assertion

The plaintiff asserts that 10,00,000 won, which was distributed to the defendant, is a false tenant, should be distributed to himself/herself. Accordingly, the defendant asserts that since the plaintiff had already been distributed 16,00,000 won of the amount of distribution of ○○○○, the amount of distribution of the plaintiff was determined to have been distributed to him/her, the amount of distribution of 147,828,331 won (131,828,331 won + 16,00,000 won), and there is no evidence to prove that the amount of the plaintiff's claim under the contract to establish the right to collateral security of this case exceeds the above amount, and that himself/herself is a true tenant.

B. Determination

On the ground that the registration of creation of a mortgage was completed over the maximum debt amount of KRW 170,00,000, the amount of the secured debt of the mortgagee is not presumed to be KRW 170,00,000, which is the maximum debt amount of KRW 170,000, and the amount of the secured debt pursuant to the mortgage contract should be separately attested by the creditor. However, as seen earlier, other creditors than the plaintiff were paid the total amount of the secured debt during the auction procedure of this case, and the plaintiff also received additional dividends of KRW 147,828,31, the amount of the secured debt should be distributed to himself, so that the plaintiff asserted that the amount of the secured debt of the plaintiff pursuant to the mortgage contract of this case exceeds KRW 147,828,331,00, and there is insufficient evidence to acknowledge that the amount of the secured debt exceeds KRW 19,000,000.

In addition, as to whether the lease of the defendant is false, even if the defendant did not submit clear financial data about KRW 10,00,00,000 for the lease deposit, the defendant's statement in this court about the entries in Nos. 1 through 11 and the preparation of the lease agreement and the preparation of receipt in No. 11 has considerable credibility [the defendant prepared "the lease contract" on the fifth date of pleading in this case, and the seal of this ○○○ was wrong and affixed two times.The down payment was made at the time of the preparation of the contract, and the receipt was received. The two seals affixed to the contract are different from the one affixed to the contract, and the receipt was different from the one affixed to the contract, and the letter was deemed to be the seal of ○○○○. However, according to the statement in No. 1, Park○○ prepared the lease contract by using the false seal of the deceased on or before October 15, 203.

Considering that there is credibility in light of the purport of this case’s certificate of personal seal impression and argument, it is difficult to see that the lease on the real estate of this case by the Defendant is a false lease. According to the statement of evidence No. 6-1 (written investigation of current status), since the part of the strato, including the part on which the Defendant resided, is located from around September 18, 2003 to 23,000,000 won as the lessee, it is difficult to 13,00,000,000 won as the lease deposit with the above 10,000 won as the small-sum lease deposit, and 20,000 won as the lease deposit with the 10,000 won under the name of the Defendant, 10,000 won as 10,000 won as 13,000 won as 0,000 won as 0,000 won as 30,000 won as 15,000 won as 15,0000 won as .

Therefore, the plaintiff's above assertion does not seem to have any mother or there is no reason.

3. Conclusion

Therefore, the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges Lee Jae-chul