(영문) 수원고등법원 2020.10.14 2019나20708

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(영문) 수원고등법원 2020.10.14 2019나20708

배당이의

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1. The judgment of the court of first instance is modified as follows.

In the case of the compulsory auction for real estate D in Suwon District Court, Suwon District Court.

Reasons

1. The reasoning for the court’s explanation on this part of the facts is as follows, and it is identical to the corresponding part of the judgment of the first instance (from No. 2 of the judgment of the first instance to No. 16 of the first instance to No. 6 of the judgment). Thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act

Part II, 17 and 18 "Agricultural Company E (hereinafter referred to as "E") shall be incorporated in Co., Ltd. E (i.e., agricultural company L: hereinafter referred to as "E").

2. The plaintiffs' assertion is merely a surety's property to secure the obligation equivalent to KRW 2 billion of E, and the defendant cannot be deemed to have a monetary claim against E on the sole basis of the fact that there was a monetary transaction statement between the defendant and E, etc.

Nevertheless, the defendant has a loan claim of KRW 2 billion according to the loan agreement with E, and the payment order of this case became final and conclusive by entering it in the application for the payment order.

Therefore, since the defendant received dividends with false bonds, the amount of dividends against the defendant among the dividend table prepared in the auction procedure of this case (hereinafter "the dividend table of this case") shall be deleted, and the deleted dividend amount shall be distributed to the plaintiffs.

3. Determination

A. The burden of proving the grounds for objection to a distribution in a lawsuit of demurrer against a distribution is in accordance with the principle of the burden of proof in a general civil lawsuit. In the event that the plaintiff claims that the defendant's claim was not constituted, the defendant is liable to prove the facts of the cause of the claim, and where the plaintiff claims that the claim was invalidated as a false declaration of agreement or extinguished by repayment, the plaintiff is liable to prove the facts constituting the grounds for disability or extinguishment (see, e.g., Supreme Court Decision 2005Da39617, Jul. 12, 2007). The defendant's assertion as to the

참조조문

-민사소송법 제420조

참조판례

-대법원 2007. 7. 12. 선고 2005다39617 판결

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