Whether the Plaintiff has the right to receive dividends from the auction proceeds of this case

Even if the plaintiff appeared on the date of distribution of the auction procedure of this case and raised an objection on the substantive basis of the distribution schedule, it cannot be deemed legitimate objection as having been filed by the person who has no right to receive the distribution. Thus, the lawsuit of demurrer against distribution of this case is illegal as filed by

2018 Gohap 538263 Demurrer against distribution

Maternus

Republic of Korea 2 others

September 19, 2018

October 24, 2018

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

Of the distribution schedule prepared by the above court on June 5, 2018 with respect to the auction case of real estate rent from 20xxxxxxx, the amount of dividends against the plaintiff shall be adjusted from 0 won to 361,728,59 won, from 49,630 won, from 361,073,339 won, from 361,073, and 339 won, from 15,630 won, from the amount of dividends against the defendant △△△△△, from 15,630 won, respectively.

1. Facts of recognition;

가. 원고는 2014. 1. 10. 정∇∇ 소유의 서울 xx구 xx동 173 지상 1층 제102호 건물(이하 '이 사건 부동산'이라 한다)에 관하여 2013. 12. 10. 매매예약을 원인으로 하여 소유권이전청구권가등기(이하 '이 사건 가등기'라 한다)를 마쳤다.

B. △△ Cooperative applied for a voluntary auction on the instant real estate based on the right to collateral security on October 9, 2009, and on February 14, 2017, this Court rendered a voluntary decision to commence auction as the head of 20xxxxxx (hereinafter referred to as the “instant auction”).

C. On February 16, 2017, the instant auction court sent to the Plaintiff a written peremptory notice demanding the return of the instant provisional registration is a provisional registration for security, and when the provisional registration for security is a provisional registration for security, to the Plaintiff’s domicile on the Plaintiff’s registry by registered mail. On July 3, 2017, which passed on May 8, 2017, the period for demanding distribution, the Plaintiff submitted an application for demand for distribution and a statement of claim amounting to KRW 1,879,750,000 to the instant auction court.

라. 이 사건 부동산은 이 사건 경매절차에서 2018. 4. 24. 1,159,990,000원에 매각되었고, 2018. 6. 5. 위 매각대금의 배당기일에서 이자와 집행비용을 제외한1,152,235,699원 중 499,630원이 피고 ○○시에, 114,870,075원이 피고 대한민국(▲▲세무서)에, 246,203,264원이 피고 대한민국(◆◆세무서)에, 155,630원이 피고 △△시에 각 배당되었다.

E. The Plaintiff appeared on the aforementioned date of distribution, and raised an objection against the dividend amount to the Defendants, and filed the instant lawsuit.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 through 7 (including additional numbers), the whole purport of the pleading

2. The plaintiff's assertion

The provisional registration of this case is a provisional registration that guarantees the Plaintiff’s claim for the amount of money and the amount of the principal and interest of the loan that the Plaintiff has against the party established. It is not legitimate to process that the Plaintiff sent a peremptory notice one time to the Plaintiff at the auction procedure of this case, and the purport of having the deadline for reporting claims under the Provisional Registration Security Act (hereinafter “Provisional Registration Security Act”) is to determine whether any surplus exists through auction. Therefore, in the event that there is no hindrance to judgment on whether any surplus exists as in this case, if the Plaintiff, who is the right holder for provisional registration of security, filed a report on the claim after the completion period for demanding a distribution, has the right to receive a dividend in the auction procedure of this case.

3. Determination on this safety defense

The Defendants have no standing to sue in a lawsuit of demurrer against the Plaintiff. A person standing to sue in a lawsuit of demurrer against the distribution is limited to creditors or debtors who have been present on the date of distribution on the date of distribution, and creditors who have not lawfully failed to file an objection to the distribution on the date of distribution did not have the right to attend the distribution on the date of distribution and make an objection to the distribution schedule in substance. Thus, even if such person appeared on the date of distribution and filed an objection to the distribution schedule, this is illegal and unreasonable, and there is no standing to sue in a lawsuit of demurrer against the Plaintiff (see Supreme Court Decision 2013Da58101, Nov. 27, 2014). Article 16 of the Provisional Registration Security Act provides that, where a decision to commence an auction, etc. of real estate on which a provisional registration is made, if the provisional registration is a provisional registration on the date of distribution, the court shall notify the existence, cause and amount of claims, and if the provisional registration is not a provisional registration on the date of distribution, the details thereof shall be reported to the court.

On February 16, 2017, the instant auction court sent to the Plaintiff a written peremptory notice demanding to report the amount of the instant provisional registration to the Plaintiff by registered mail at the address of the Plaintiff’s domicile on the Plaintiff’s registry when the instant provisional registration is a provisional registration for security, and when the provisional registration for security is a provisional registration for security, the Plaintiff submitted a written peremptory notice demanding distribution and a claim statement with the amount of claims worth KRW 1,879,750,000 on July 3, 2017, which was past May 8, 2017, the period for demanding distribution, as seen earlier.

In addition, Article 8(1) of the Civil Execution Rule provides that the peremptory notice and notification in civil execution procedures may be made in a reasonable manner unless otherwise provided, and Article 6(3) of the Guidelines for Handling Auction Procedures for Real Estate, etc. (Republic 2004-3) provides that notification of the completion period to demand distribution to a person having chonsegwon and a creditor, who is stipulated in the latter part of Article 84(2) of the Civil Execution Act, shall be sent by registered mail in the address indicated in the record, the notification of the completion period to demand distribution to the plaintiff, who is a person having the right to a provisional registration, shall be deemed lawful because it is made in such a manner as deemed reasonable under

In addition, since the plaintiff, who is a provisional registration holder, did not report his claim within the period of report on claim set by the auction court of this case even after being lawfully notified as above, the plaintiff lost his right to receive dividends in the auction procedure of this case. As long as the language and text of Article 16 (2) of the Provisional Registration Security Act is evident, it is difficult to understand the surplus in the auction procedure of this case as alleged by the plaintiff, it is difficult to interpret exceptionally that the right to receive dividends should not be lost even if not

Therefore, even if the plaintiff appeared on the date of distribution of the auction procedure of this case and raised an objection on the substantive basis of the distribution schedule, it cannot be deemed a legitimate objection since the plaintiff did not have the right to receive dividends, and thus, the lawsuit of demurrer against distribution of this case is unlawful as it was filed by

4. Conclusion

Therefore, the lawsuit of this case is unlawful and thus, it is so decided as per Disposition.