1. Of the distribution schedule prepared on January 5, 2016 by the above court with respect to a case of application for compulsory auction of real estate C by the Cheongju District Court.

1. Basic facts

A. On September 5, 2014, the Plaintiff filed an application for a compulsory auction against D for real estate, and on January 5, 2016, the Cheongju District Court prepared a distribution schedule to distribute KRW 29,449,324 to the Defendant and KRW 2,516,447 to the Plaintiff in the above case of application for the compulsory auction for real estate C in the court (hereinafter “instant auction case”).

B. On the date of distribution of the said auction case, the Plaintiff raised an objection against the whole amount of dividends to the Defendant, and on January 12, 2016, the Plaintiff filed a lawsuit of demurrer against the distribution of the instant case.

[Ground for recognition] Unsatisfy, Gap evidence 1 (including paper numbers; hereinafter the same shall apply)

2. The parties' assertion

A. In the instant auction case, the Plaintiff, as a creditor to D, demanded a distribution. On January 2, 2014, which is the basis for the demand for distribution, D on the No. 4 (Quasi-Loan for Consumption) Contract No. 2014, which was prepared by a notary public E office belonging to the Cheongju District Prosecutors’ Office (hereinafter “instant notarial deeds”) to the Defendant, as the lessee, bears a debt burden of KRW 90,000,000 against the Defendant for 36 months from March 2, 2014 to February 2, 2017, and thus, the dividends to the Defendant should be deleted and distributed to the Plaintiff.

B. Since the Defendant purchased the right of rescission from the Defendant D, and thereafter, purchased the right of rescission from D, and again leased the right to rescission to D, the Defendant’s dividends against the Defendant are justifiable.

3. Determination

A. The burden of proving the grounds for objection against distribution in a lawsuit of demurrer against distribution is also in accordance with the principle of distribution of the burden of proof in general civil procedure. In the event that the plaintiff claims that the defendant's claim has not been constituted, the defendant is liable to prove the facts of the cause of the claim, and where the plaintiff claims that the claim has become null and void as a false declaration of conspiracy or has become extinguished by repayment,

Supreme Court Decision 2005Da39617 Decided July 12, 2007