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(영문) 서울중앙지방법원 2012.05.09 2011가합33264
배당이의
Text

1. The plaintiff's lawsuit against the defendants is dismissed in entirety.

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

Reasons

1. Basic facts

A. On October 22, 2004, Defendant B, C, and E completed the provisional attachment entry registration with a claim claim amounting to KRW 400 million on the Plaintiff’s share 1/2 of the real estate listed in the separate attachment list in the case of application for provisional attachment on October 22, 2004.

B. On January 28, 2010, Defendant B and C rendered a judgment in favor of part of the provisional execution declaration book to the effect that “the Plaintiff shall pay to the Defendant B and C the amount of KRW 195,417,563 and the delay damages therefrom,” in the lawsuit claiming agreement and unjust enrichment against the Plaintiff.

C. On February 26, 2010, according to the judgment of the provisional execution declaration book under the above Paragraph (b) above, Defendant B and C applied for a compulsory auction on the Plaintiff’s share 1/2 among the real estate listed in the attached list in the attached list to F of this Court and received a decision of commencement.

(hereinafter “instant auction procedure”). D.

Defendant D completed the provisional attachment registration of KRW 19,805,715 of the Plaintiff’s share in the real estate listed in the separate sheet at the time of application for provisional attachment of real estate on April 5, 2010.

E. On March 31, 2011, the instant court drafted a distribution schedule with the content of allocating KRW 150,868,027 to Defendant B and C, the creditor of the instant auction procedure, from among KRW 238,125,417, which deducts the execution cost on the date of distribution, and KRW 11,285,136 to Defendant D, the person holding the provisional attachment right, and to Defendant E, the person holding the provisional attachment (Ga is a clerical error in the distribution schedule), who is the person holding the provisional attachment right (Ga is a clerical error in the E’s distribution schedule).

F. The Plaintiff, a debtor, appeared on the aforementioned date of distribution, and raised an objection against the Defendants on the entire amount of distribution, and thereafter filed the instant lawsuit on April 6, 201, within seven days thereafter.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Eul evidence 3, Eul evidence 2-1, Eul evidence 3, Eul evidence 6-1, Eul evidence 6-2, and the purport of the whole pleadings

2. Determination as to the main defense of Defendant B and C

A. The above defendants have an executory exemplification of the title of execution, which is the debtor of the auction procedure of this case.

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