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(영문) 서울중앙지방법원 2018.12.13 2018가단47715
배당이의
Text

1. The instant lawsuit shall be dismissed.

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

Reasons

1. Basic facts

A. On August 7, 2018, the Seoul Central District Court C and D (Dual) auction procedure (hereinafter “instant auction procedure”) took place with respect to the shares of each real estate listed in the separate sheet owned by the Plaintiff and E, and the said court drafted the following distribution schedule with respect to the Defendant, etc.

The dividends of the Defendant-mortgage 1,302,609,934 1,200,000,000 9 Defendant-mortgage 1,302,609,934 1,200,000 for Defendant-mortgage 1, the debtor-mortgage 1,302,609,934 102,609,934 104,934 10 E- The debtor-owner ( retained earnings), and 500,081,464 50,081,464

B. On the date of the above distribution, the Plaintiff stated an objection against the total amount of the 9th distribution to the Defendant, and filed the instant lawsuit on August 13, 2018, which was seven days thereafter.

[Reasons for Recognition] Facts without a partial dispute, entry of Gap evidence No. 1 and purport of the whole pleadings

2. Determination on the legitimacy of the instant lawsuit

A. The gist of the Plaintiff’s assertion is that the Defendant illegally received excessive dividends in the instant auction procedure, so the executing court should distribute the amount of excess dividends to the Defendant, as stated in the purport of the claim, to E.

B. A lawsuit of demurrer against a distribution on the market is to seek the alteration of a distribution schedule or the preparation of a new distribution schedule in order to make the distribution distributed to oneself by reducing the amount of distribution by the persons who are recorded in the distribution schedule as being distributed to them, and the distribution to the Defendant is unlawful.

Even if the amount to be distributed to the Plaintiff is not increased due to such increase, such cause cannot be deemed the grounds for filing a lawsuit of demurrer against distribution seeking an increase in the amount of dividends (see Supreme Court Decisions 2011Da48902, Sept. 29, 201; 92Da50270, Jan. 25, 1994). The Plaintiff’s claim is unlawful as there is no room to increase the Plaintiff’s amount of dividends by itself, since there is no concern for the increase in the amount of dividends by itself.

3. If so, the instant lawsuit is unlawful, and it is so dismissed as per Disposition.

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