2006 Ghana 49883 Demurrer

Gwangju Agricultural Cooperative

Gwangju Northern Northern District 568 - 5

Representative of the Association President Kim Jong-ho

Attorney Yang Sung-hee, Counsel for the defendant-appellant

1. Dust 00;

T. S. T. T.S.C.

2. Demotion00

Jeonnam-do Eup Do-do-Eup

3. 100

Gwangju Northernbuk-gu

4. Hyo;

Gwangju Southern-gu Jeju-gu Jeju-dong

5. Kim 00

Gwangju Southern-gu Jeju-gu Jeju-dong

6. Stambling00

Current unknown whereabouts;

Last Address, Nam-gu, Gwangju Dong-dong

7. Clerks00

Gwangju Dong-gu 2 Doz.

8. KimO;

Gwangju Northernbuk-gu Seoul Metropolitan Government

9. Demotion;

Gwangju-nam-gu Gwangju-dong

10.M 00

Gwangju Seo-gu Pungdong

11.Glaver0

B. L. L. P. P. H.

12. Prostitution0

Jeon Chang-gun, Kim Chang-gun

13.00

Gwangju Mine-gu Woo-dong

14. Fixed 00

Gwangju Northern Northern-gu Woo-dong

5. Fixed 00

Seoul Songpa-gu District Court

16. Lighting0

Gwangju Northernbuk-gu

7. Lighting00

Gwangju Nam-gu Seo-dong

18. Newly Inserted by Act No. 500

Gwangju Northern-gu Northern-dong

19. Red00

Ham-gu, Hamyeong-gu, Jeon-nam

20. Liquor 00

Gwangju Northernbuk-gu Dongdong-dong

Law Firm excluding Defendant 1, 6, and 10 others

In case of a senior secretary;

Attorney Kim Jong-seok, Park Jong-chul, Kim Tae-ho, Yang Ho-ho

March 8, 2007

March 22, 2007

1. Of the distribution schedule prepared on May 3, 2006, the amount of dividends to the plaintiff 384,046,4030,4030,000 won for the compulsory auction of real estate (No. 2005, 30410, 2006, 935), the amount of dividends to the plaintiff 463,402,668 won, which is KRW 00,00,00 for the defendant 10,000, 100, 300,000, 14,000,000 won for each of 14,000,000 won for the distribution, 10,000 won for the defendant 14,000,000 won for each of 04,000 won for the defendant 1,05,000 won for each of 04,000 won for the defendant 14,000,000 won for each of 000 won for the defendant

2. The plaintiff's remainder of the claims against the defendant JinO, JO, KO, KO, KimO, SO, SO, GO, KimO, MaO, Kim 00, MaO, MaO, MaO, MaO, MaO00, MaO, MaO, Mao0, Mao0, red0, and Man0 are dismissed.

3. The costs of lawsuit shall be borne by the Defendants.

Gwangju District Court 2004 Doz. 29314 (2005 Dop. 30410, 2006 Dop. 935) Compulsory real estates

Of the dividend table prepared on May 3, 2006 by the above court with respect to each case, the amount of dividends to the plaintiff

384, 046, 403 won 464,647,938 won, each amount of dividends against Defendant 00, and Note 00

5,00,000 won each of 3,376,001 won, 8,000,000 won for Defendant Hong 00

amounting to KRW 5,401,602, amounting to KRW 32,00,000 for Defendant 00, amounting to KRW 30,000,000; and

each dividend amount of KRW 14,00,000 against the Defendants shall be corrected to each amount of KRW 9,452,803, respectively.

1. Facts of recognition;

A. On December 28, 200, the Plaintiff concluded a mortgage contract with a maximum debt amount of KRW 485,00,000,000 as joint collateral, and completed the registration of establishment of a neighboring building in the name of the Plaintiff on the same day. (2) On the same day, the previous building was removed, and the new building (2) was newly constructed on November 22, 2001, as shown in the attached Table (2) in the attached Table (hereinafter referred to as the new building of this case) on the land owned by the above Kim 00 and the building (1) listed in the attached Table (hereinafter referred to as the land of this case) owned by the above Kim 00 in order to secure the loan claims against the above Kim Do, and on November 22, 2001, the registration of establishment of a new building was completed under the name of the Plaintiff.

(3) On November 21, 2001, the Plaintiff entered into an additional mortgage contract to secure the Plaintiff’s loan claims against the above 00 with respect to the new building of this case on November 21, 2001, and completed the registration of establishment of a neighboring mortgage in the name of the Plaintiff on November 22, 2001, and also on November 201.

11. 21. In order to secure the claim for a loan to the above KimO and its owner, a contract to establish a mortgage with a maximum debt amount of KRW 370,00,000 on the land of this case and the new building on the land of this case as joint collateral, and the following day.

22. The registration of the establishment of a neighboring mortgage in the name of the plaintiff was completed.

(4) On May 10, 2002, Nonparty Kim 00 purchased the instant land and the instant new building from the above Kim 00, and completed the registration of ownership transfer in the above Kim 00 name on June 11, 2002.

B. The Defendants acquired the opposing power under Article 3(1) of the Housing Lease Protection Act by leasing and delivering each of the defense rooms of the instant new building from the above KimOO as shown below, and the above Kim 00 succeeded to the lessor’s status under Article 3(2) of the Housing Lease Protection Act by purchasing the instant new building from the above KimO.

(2) The remaining Defendants leased and completed the moving-in report, each of the units of the instant new building from the above KimO as follows.

C. The creditor of the above KimO filed an application for a compulsory auction of real estate with respect to the land of this case and the new building of this case, and the non-party O filed an application for a compulsory auction of real estate with this court on May 24, 2004, and the decision of commencement of auction was completed on May 29, 2004 on May 29, 2004.

(2) When the auction procedure on the instant land and the instant new building was conducted, the Defendants reported a right to the auction court in order to obtain a preferential repayment of the deposit for each of the above lease deposits and made a demand for distribution. Defendant 00, Jeju 00, and Defendant Hong 00, respectively, demanded KRW 5,000, and Defendant Hong 00, and demand for distribution of KRW 8,000,000, and other Defendants demanded the amount equivalent to the deposit for lease.

(3) During the above auction procedure, the instant land was appraised as KRW 506,250,00; KRW 553,88,600 for the instant new building; KRW 553,88,60 for the instant new building; based on this, the instant land and the instant new building was sold for KRW 668,719,773 as a result of a blanket auction. The auction court held that out of the amount of KRW 661,672,00,000 for the Defendant 00 for the amount of KRW 32,00,000 for the Defendant 14,000,000 + KRW 18,000 for a fixed date + KRW 18,000 for the instant new building; KRW 5,00 for each of the instant land and the instant new building; KRW 368,00 for the Defendants’ dividends; KRW 360 for the Defendants’ dividends; KRW 400 for the Defendants’ dividends; KRW 3640,000 for the Defendants’ dividends.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1 through 20, Gap evidence 3-1 through 20, Gap evidence 4-6, and the purport of the whole pleadings

2. Determination on the dividend order and dividend amount

A. The plaintiff's assertion

The Plaintiff asserts that the right to preferential reimbursement of the price of the site is not possible in the event that a building is newly constructed only after the establishment of a mortgage on the site at the time of the establishment of a mortgage on the site. In this case, the Defendants, a lessee of small amount, who is the lessee of small amount, cannot receive preferential reimbursement from the proceeds of realizing the site, after the establishment of the Plaintiff’s right to collateral security on the land, and the lease of the new building is made after the establishment of the Plaintiff’s right to collateral security on the land. Therefore, the distribution schedule should be modified as stated in the purport of the claim.

B. The defendants' assertion

As to this, Defendant Jinjin0, Gangwon-O, HanO, KimO, SO, SOO, Kim O, 00, 00, Ma0, Ma00, Ma00, Ma00, Ma00, ManO, Ma00, Ma-O, Ma00, Ma00, Ma-O, Ma00, 17, 000 (hereinafter Defendant Jinjin-0, 17, et al.) provided that the obligor has preferential payment right within the limit of one half of the value of the housing including the value of the site for small lessee, without any specific restriction under the Housing Lease Protection Act, in the event the obligor removes the building existing at the time of the establishment of the right to collateral security on the land of this case and there has already been a building on the ground at the time of the establishment of the right to collateral security on the land of this case, thus recognizing the Defendants’ preferential reimbursement from the realized amount of the land of this case.

C. Determination

(1) The key issue of this case is whether the Defendants can receive dividends from the proceeds from the sale of the land in this case. In the case where the lessor, after setting a collateral on the land and its ground, arbitrarily destroys the house and newly constructed a new house on the site, and thereafter rents the land and new building on the newly constructed new building, and then sold en bloc at a compulsory auction, the mortgagee of a small amount of the newly constructed building should also have the right to preferential reimbursement for the proceeds from the sale of the land, only under special circumstances where it seems that the mortgagee would have determined the collateral value in consideration of the fact that there is a small lessee who is already recognized the right to preferential reimbursement at the time of establishing the collateral on the land

In this case, it is difficult to view that there was a house on the land of this case at the time when the Plaintiff’s right to collateral security was established. Rather, considering the purport of the entire pleadings, the old building prior to the removal was 63.03 meters of cement mortar and pent roof, 29.04 square meters of cement mortar and pent roof, 7.26 meters of house on one-story, wooden cement mortar and pent roof, 47.52 square meters of house on one-story, 22.44 square meters of house on one-story and 7.8 meters of house on one-story and 7.8 meters of land on one-story, which are 20 meters of land on one-story and 7.8 meters of land on one-story, and the new building of this case which was newly built on one-story and 13.8 meters of land on one-story and 84 meters of 20 meters of land on one-story and 94 meters of 20.29 meters of 28 meters of m of residential building on one-story and 29.26 meters of

(2) Accordingly, according to the Plaintiff’s assertion, the amount of dividends calculated by the Plaintiff and the Defendants is as follows.

(A) Distribution of the proceeds from the sale of the instant land

(1) Amount to be distributed: 315, 969, 506 won = [67, 700,000 won (the proceeds from the sale of the land in this case and the new building in this case)]

-7,047,730 won + 1,019,773 won (proceeds of sale) x 506,250,00 won / 506,250, 000 won + 553,88,608, 608)

2. Priority 1 of distribution - Priority 1 of aggregate land tax (the relevant tax), 1, 245, 270 won - The amount of the Plaintiff’s secured debt of the right to collateral security, 314, 724, 236 won (B) of the proceeds from the sale of the new building of this case

(1) Amount to be distributed: 345, 702, 537 won = [67, 700,000 won (the proceeds from the sale of the land in this case and the new building in this case)]

-7,047,730 won + 1,019,773 won (proceeds of sale) x 553,88,608 won / 506,250,00 won + 553,88,608,608 won);

(2) Priority one in distribution (Small-sum security deposit).

(1) Total amount deposited: 256,000,000 won

= 14,000,000 won x 17 (name 8,000, et al.) + 8,000,000 won (red redO) + 5,000,000, 000 x 2 (le00, note 00)

B. (1/2 of the amount to be distributed: 172, 851, 268 won ( = 345, 702, 537 won x 1/2) calculated by dividing the amount of money to be distributed by the ratio of the respective small amount of deposit against the total amount of deposit (a).

- Defendant JinO, Gangwon-O, KO, KimO, GaO, GaO, GaO, KimO, KimO, GO, Gangwon-O, Professor, O, KimO, HaO, MaO, O, O, Professor, 803 won ( = 172,851, 268 won x 14,000 won x 14,000 won x 256,000 won / 256,000,000 won) - Defendant 3,376, 001 won each ( = 172,851,268 won x 5,000 won x 256,000 won / 256,000 won ,00 won)

- Defendant Red0: 5, 401, 602 won ( = 172, 851, 268 won 8,00,000 won/ 256,000,000 won/)

- Order 2 3,625, 640 won - 20,547,197 won (=30,000,000-9,452,803 won) - 463,402,668 won (c) as to the plaintiff's secured claim of the right to collateral security, 463, 402, 668 won (= 314,724, 236 won + 148, 678, 432 won), 30,00 won as to the defendant's 00, 300,000, 300, 300, 300, 300, 300, 300, 400, 300, 300, 300, 45, 3000, 300, 300, 300, 300, 300, 300, 4, 3000.

2) However, in a case where the distribution of dividends against the defendant is revoked as a result of the examination of a lawsuit of demurrer against distribution, the amount of dividends arising therefrom shall be reverted to the plaintiff within the scope of the plaintiff's claims, without considering the amount of claims of other creditors who did not raise any objection. If there is any money remaining after additional distribution to the plaintiff, it shall be left to the defendant (see Supreme Court Decision 98Da3818, May 22, 1998). This shall be left to the defendant (see Supreme Court Decision 98Da3818, May 22, 1998).

The Supreme Court Decision 2000Da2000 delivered on February 9, 2001.

See Decision 41844.

3) Therefore, within the scope of KRW 79,356,265 ( = 463,402,668 won - 384,04, 046, and 403 won) which is the difference between the amount of legitimate dividends to the Plaintiff and the amount of dividends to the Plaintiff, KRW 80,601,548 ( = 274,000,000 in total of the amount of dividends to the Defendants - KRW 193,398,452 in total of the amount of legitimate dividends to the Defendants - KRW 1,245,283 in addition distributed to the Plaintiff ( = 80,601, 548 won - 79, 356, and 265 won).

The defendants should remain in the ratio of the amount to be returned by the defendants as they are.

4) Ultimately, the amount of dividends against the plaintiff over 204 29314 (2005 30410, 206 935) : 463, 402, 68 won, defendant Jin 00, KO, KimO, GaO, Gao, Gao, Gao, KimO, Gao, Gao, Gao, Mao, 50, 10, 30, 50, 30, 40, 50, 50, 208, 30, 50, 306, 306, 50, 50, 106, 30, 305, 106, 50, 306, 250, 304, 57, 196, 306, 47, 57, 196

3. Judgment on Defendant Park 00 by public notice (Article 208(3)3 of the Civil Procedure Act)

4. Judgment by deeming the Defendant to be a confession against the Defendant 00 (Articles 208(3)2 and 150(3) of the Civil Procedure Act)

5. Conclusion

Therefore, each claim against the plaintiff GaoO and OO00 shall be accepted on the grounds of its reasoning, and each claim against the defendant Jin 00 and 17 others shall be accepted within the scope of the above recognition, and the remainder shall be dismissed on the grounds of its reasoning. It is so decided as per Disposition.

Judges Song Young-young

A person shall be appointed.