It is reasonable to deem that an auction for partition of co-owned property is conducted under the condition of statutory sale to extinguish the burden on the target real estate.

It is reasonable to view that an auction for partition of co-owned property is conducted under the condition of statutory sale to extinguish the burden on the target real estate, like a compulsory auction or auction for exercising a security right. However, if necessary, the court may, unlike the above statutory sale condition, extinguish the burden on the target real estate and allow the buyer to take over the property without extinguishing the burden on the object real estate, but if it is, it must be notified by changing the sale condition.

2012 grouped 43324 Demurrer against distribution

OraA

Korea

February 5, 2013

February 26, 2013

1. The plaintiff's claim is dismissed.

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

Of the distribution schedule prepared by the above court on September 21, 201, the amount of 000 won against the defendant shall be deleted, and the amount shall be corrected to be distributed to the plaintiff, and the auction case for partition of co-owned property shall be corrected to be distributed to the plaintiff.

1. Basic facts

A. The real estate in this case was owned by NonpartyCC, Ed, EE, EE, EF, EH, and EJ, and EJ and EK, respectively, in proportion to 1/24 of this case.

B. Of the instant real estate, 1/6 shares of KugG, and on August 3, 201, the provisional registration of the right to claim a transfer of all shares (hereinafter “the provisional registration of this case”) was completed in the Plaintiff’s future, and thereafter on October 19, 2011, the Defendant executed attachment.

C. In around 2011, the competent GG filed a lawsuit against other co-owners regarding the instant real property in this court. On June 15, 201, the said court rendered a decision of recommending reconciliation to auction the instant real property and distribute the price according to the share ratio, and the said decision became final and conclusive as it is.

D. Based on the above decision of recommending reconciliation, the competentG filed an application for an auction for partition of co-owned property with this Court around 201TA, and the Plaintiff filed an application for demand for distribution and a claim statement with the court of execution on October 26, 201, for a provisional registration to secure the Plaintiff’s claim against the Plaintiff’s rightG, in the auction procedure (hereinafter “instant auction”).

마. 권GG↓은 법정기일이 1998. 11. 1.， 1999. 5. 31.， 2001. 10. 1.， 2002. 1. 1.인 각 종합소득세, 법정기일이 1998. 12. 1.， 1999. 7. 25.， 2000. 1. 1.， 2000. 7. 25.인 각 부 가가치세 합 11 22，672，780원의 국세를 납부하지 아니하였고， 피고는 2011. 10.경 위 집행법원에 권GG이 체납한 위 국세에 대한 교부청구를 하였다.

F. On the date of distribution open on September 21, 2012, the said court prepared a distribution schedule that distributes 000 won equivalent to the ratio of the shares of the GG out out of the amount to be actually distributed, excluding the execution expenses, to the Defendant who is the person having the right to seize and the person having the right to deliver the distribution (hereinafter referred to as “instant distribution schedule”).

G. Accordingly, the Plaintiff raised an objection to the total amount of dividends against the Defendant, and filed the instant lawsuit on the same day.

[Grounds for Recognition: Facts without dispute, Gap evidence 1 through 8, Eul evidence 1 and 2, and the purport of the whole pleadings]

2. Summary of the plaintiff's assertion

The auction of this case is an auction by the judgment on partition of co-owned property, which is a so-called formal auction for realizing the object in money, and its purpose is to realize the object in money, and it is not required to pay it to the applicant or other creditors, and the burden of provisional registration, etc. of this case is not extinguished as the auction of this case, and can be taken over to the successful bidder without extinguishing the burden of provisional registration, etc. of this case. Nevertheless, it is sufficient to pay dividends for shares registered by the plaintiff on the ground that the legal date is prior to the legal date, and to pay dividends to the defendant at all that time could have been maintained the effect of provisional registration.

3. Determination

A. Auction for partition of co-owned property is to be considered as having caused statutory sale conditions so long as the executing court did not notify the sale conditions to the contrary, and to extinguish the above burden on the real estate. Article 274(1) of the Civil Execution Act provides that auction under the lien and auction for realization under the Civil Act and other Acts shall be conducted in the same manner as the auction to enforce the security right. Thus, in an auction for partition of co-owned property conducted under Article 269 of the Civil Act, if the purchaser acquires full ownership by extinguishing the above burden on the real estate, or if the purchaser takes over the above burden on the real estate, it is difficult to determine whether the auction purpose is recovery of the claim or simply realization, and if the auction purpose and purpose of auction are based on the substantive law, and if auction is based on the above auction, it is difficult to determine whether there is any burden on the co-owners and the purchaser's interest in the auction procedure to take over the above co-owned property as well as to limit the auction purpose and sale of the real estate under Article 91(2) of the Civil Execution Act.

B. In a case where a person having a provisional registration files a claim report on the premise that a provisional registration is made on the premise that a provisional registration is made, the provisional registration will cease to exist, regardless of whether a person having a provisional registration distributes

A person with a provisional registration may participate in the auction procedure for the target real estate and receive preferential payment therefor only in the case of "provisional registration for security", and it is not known whether the entry in the registry alone is a provisional registration or provisional registration for security for purely preserving the order of priority of claim for transfer of ownership, and if so, he/she may receive dividends by recognizing the provisional registration for security to be reported. On the other hand, the relevant provisional registration shall have the same effect as the mortgage, and

C. The distribution schedule of this case is legitimate, since the provisional registration for security and the priority order of national taxes are completed at the time of provisional registration, the passage of the statutory deadline for national taxes is determined, and the distribution schedule of this case is legitimate.

The global income tax and value-added tax on the sphereGG in question in this case are identical to the facts that the Plaintiff had completed the provisional registration of this case, and thus, the Defendant’s claim, a national tax, takes precedence over the Plaintiff’s claim pursuant to Article 35 of the Framework Act on National Taxes. Therefore, the instant dividend table stating that the Plaintiff distributes the dividends on the share registered provisionally to the Defendant is lawful.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.