Whether a request for delivery erroneously stating the auction system is legitimate

As long as the written request for issuance of this case arrives at the auction court, even if the department in charge of the auction case was mistakenly described in the column of the receiver of the mail containing the above written request for issuance, the division of the auction court is merely separate from the department in charge of the convenience of handling the auction case within the same court, and it cannot be said that the defendant's receipt of the written request for issuance of this case is unlawful.

Seoul Southern District Court 2016Gahap1565 (main office) Demurrer against distribution

○○ Textiles Corporation

Korea

April 21, 2017

May 12, 2017

1. The plaintiff (Counterclaim defendant)'s primary and primary claims are all dismissed.

2. The costs of lawsuit are assessed against the Plaintiff (Counterclaim Defendant) by aggregating the principal lawsuit and counterclaim.

Cheong-gu Office

본소 : 주위적으로, 서울남부지방법원 2015타경XXXXX, 2015타경○○○○○(중복) 부동산강제경매신청사건에 관하여 같은 법원이 2016. 4. 29. 작성한 배당표 중 피고(반소원고,이하 '피고'라 한다)에 대한 배당액 322,498,810원을 7,112,000원으로, 가압류권자인 원고(반소피고, 이하 '원고'라 한다)의 배당액 150,201,910원을 372,595,149원으로, 근저당권자인 원고의 배당액 103,705,362원을 196,698,933원으로 각 변경한다. 예비적으로, 위 부동산강제경매신청사건에 관하여 같은 법원이 2016. 4. 29. 작성한 배당표 중 피고에 대한 배당액 322,498,810원을 7,112,000원으로, 가압류권자인 원고의 배당액 150,201,910원을 465,588,720원으로 각 변경한다.

Preliminary counterclaim: The agreement concluded on July 27, 2015 and the agreement concluded on July 27, 2015 with respect to the real estate (hereinafter referred to as the "real estate in this case") between the Plaintiff and Lee○○○ (***************) and the agreement on July 24, 2015 and the agreement on the establishment of a mortgage concluded on July 27, 2015.

1. Basic facts

A. Status of the parties

1) 원고는 이○○ 소유의 이 사건 부동산에 대하여, 2015. 8. 10. 의정부지방법원 2015카단XXXXX호로 가압류결정을 받아 서울남부지방법원 강서등기소 2015. 8. 10. 접수 제65732호로 가압류 등기(청구금액 1,195,745,244원)를 마쳤고, 2015. 7. 27.자 (근저당권)설정계약을 원인으로 같은 등기소 2015. 8. 12. 접수 제66341호로 근저당권 설정등기(채권최고액 5억 원)를 마쳤다.

2) On July 3, 2015, the Defendant: (a) seized the instant real estate on the ground that ○○○ was delinquent in paying global income tax of KRW 7,112,000; and (b) completed the attachment registration on July 3, 2015 by the same registry office on the said real estate; (c) on November 30, 2014, the payment period of KRW 342,04,970 (based on the notified tax amount excluding additional charges) was the total amount of four items, including global income tax, etc., which is the global income tax on November 30, 2014.

(b) Commencement of auction, sale of real estate, etc.;

1) 서울남부지방법원(경매 7계)은 2015. 9. 1. 2015타경XXXXX호로 이 사건 부동산에관하여 강제경매개시결정을 하였고(이하 '이 사건 경매'라고 하고, 위 경매법원을 '이사건 경매법원'이라 한다), 배당요구의 종기를 2015. 10. 30.로 정하였는데, 이 사건 부동산은 위 경매절차에서 2016. 3. 28. 매각되었다.

2) On December 17, 2015, the director of the Gangseo District Tax Office under the Defendant’s jurisdiction prepared a written request for the issuance of the increased tax amount of KRW 346,067,060, and the increased tax amount of KRW 346,060 to the distribution date, and sent it to the Seoul Southern District Court. The said written request was received at the instant auction court on December 21, 2015.

3) On April 15, 2016, the director of the Gangwon District Tax Office under the Defendant’s jurisdiction prepared a written request for the issuance of the increased tax amount of KRW 356,804,410, and the increased tax amount of KRW 356,80 to the distribution date, and sent it to the Seoul Southern District Court. The said written request was received on April 19, 2016 at the instant auction court.

(c) Preparation of distribution schedule;

1) On April 29, 2016, the instant auction court: (a) determined the amount to be distributed on the date of distribution as KRW 1,402,741,612; (b) drafted a distribution schedule with the content of each distribution of KRW 322,498,810 as the third-class seizure authority; and (c) the Plaintiff, as the holder of the fifth-class provisional attachment authority, as the holder of the fifth-class provisional attachment authority, as the holder of the fifth-class provisional attachment, the amount of KRW 150,201,910, and as the holder of the fifth-class collective security (hereinafter referred to as the “instant distribution schedule”).

2) The Plaintiff appeared on the date of the foregoing distribution and raised an objection against the full amount of the dividend to the Defendant as the person holding the provisional seizure and the right to collateral security.

[Ground for recognition] Facts without dispute, Gap evidence 1 through 7 (including each number, unless the number has been otherwise specified; hereinafter the same shall apply), Eul evidence 3, 4, 11, 12, 16, evidence 15-2 and 3, and the purport of the whole pleadings

2. Whether the defendant has made a lawful request by the deadline for demanding distribution.

A. Summary of the parties' assertion

1) The plaintiff's assertion

Even though the completion period to demand the distribution of the instant auction procedure was October 30, 2015, the Defendant first requested delivery on December 21, 2015, which was after the completion period to demand the distribution, and submitted a written request for additional delivery on April 19, 2016 only some of the amount increased, which did not make a legitimate request until the completion period to demand the distribution. Therefore, the amount to be distributed to the Defendant should be limited to KRW 7,112,00,000, which is the amount in arrears stated in the written request for the seizure at the time of completion of the seizure registration of the instant real estate.

2) The defendant's assertion

On October 12, 2015, prior to the completion period to demand the distribution of the auction procedure of this case, the claim for the delivery of the tax amount in arrears by Lee○○○ was received to the auction court of this case, and thus, the defendant filed a legitimate claim for delivery.

B. Determination

1) Considering the overall purport of each statement and pleading of evidence Nos. 5, 15 and 16, the head of Gangnam District Tax Office under his jurisdiction prepared a request for the issuance of additional dues to 301,307,630 won (hereinafter referred to as the "written request for issuance of this case") on October 2, 2015 and sent it to the Seoul Southern District Court on October 12, 2015. The above request for delivery was delivered to the Seoul Southern District Court. The delivery of the mail containing the above request for delivery was not the 4th of the Seoul Southern District Court's 7th of the auction procedure, which is the department in charge of the above auction case, or the 4th of the Seoul Southern District Court's 7th of the auction procedure, which is the Seoul Southern District Court's 20th of the delivery date of this case, and it is clear that the above request for delivery of additional dues to 201,000 won before October 30, 2015.

2) 비록 이 법원의 사실조회결과에 의하면, 2015. 10. 1.부터 2015. 10. 30.까지 사이에 서울남부지방법원 민사신청과 경매접수계에 2015타경XXXXX호로 접수된 교부청구서는 찾아볼 수 없지만, ① 위 사실조회결과는 서울남부지방법원 민사신청과 경매접수계만을 대상으로 하여 위 법원의 다른 담당부서에 도달하였는지 여부까지 확인할 수 없는 점(대법원 2001. 6. 12. 선고 99다45604 판결의 취지 참조), ② 강서세무서에서2015. 10. 7. 발송하여 2015. 10. 12. 서울남부지방법원에 도달한 우편(을 제5호증의 5)이 존재하는데도, 위 사실조회결과에는 그와 같이 2015. 10. 12.에 서울남부지방법원민사신청과 경매접수계에 도달한 서류가 확인되지 않는 점 등에 비추어 보면, 위 사실조회결과만으로는 위 1)항의 인정사실을 뒤집고 이 사건 교부청구서가 이 사건 경매법원에 접수되지 않았다고 보기 어렵다.

3) Therefore, the instant distribution schedule prepared by the instant auction court, prior to October 30, 2015, to distribute the amount of delinquent taxes and its additional charges to the Defendant in total, 322,498,810 won to the Defendant cannot be deemed unlawful. On a different premise, the Plaintiff’s primary and primary claims are without merit.

3. Conclusion

Therefore, all of the plaintiff's main and main claims are dismissed as they are without merit, and the defendant's counterclaim is a conjunctive claim based on the premise that the plaintiff's main and main claims are accepted, and it is decided as per Disposition 1).

1) It is clear that the Defendant brought a counterclaim of this case on a conditional basis in preparation for the case where the Plaintiff’s claim for the main lawsuit is accepted. As long as the lower court dismissed the Plaintiff’s claim for the main lawsuit, it is reasonable that it did not decide on the instant counterclaim of this case. It is also see Supreme Court Decision 91Da1615, June 25, 191, and 91Da1622 (Counterclaim).