2010 Single 21487 Demurrer against distribution

조♤♤ ( 59년생 , 남 )

Sungnam-si

Public-service Advocates (Law Firm White, Counsel for defendant-appellant)

Korea Asset Management Corporation

서울 강남구 ◆◆동 ◆◆◆

President of the Representative 000

Law Firm ○○, Attorneys KimO-O

December 9, 2010

January 13, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

Of the distribution schedule prepared on March 17, 2010, the court below corrected the dividend amount of the plaintiff to KRW 10,00,000, and KRW 503, 916, and 352 to the defendant as KRW 493, 916, and 352 to KRW 493, 916, and 352, respectively.

1. Facts of recognition;

가 . 용인시 기흥구 XX 동 XXXX - XX 지상 ♠ ♠아파트 제●●● 동 제●●●호 ( 이 하 ' 이 사건 아파트 ' 라고 한다 ) 에 관하여는 , 2005 . 2 . 28 . 조 명의의 소유권이전등 기가 마쳐졌고 , 2008 . 4 . 3 . 채무자를 조王 , 근저당권자를 경기상호저축은행 주식회 사 , 채권최고액을 840 , 000 , 000원으로 하는 근저당권설정등기가 마쳤으며 , 피고가 2009 . 5 . 13 . 계약양도를 원인으로 경기 상호저축은행 주식회사로부터 위 근저당권을 이전받 았다 .

B. Meanwhile, on August 21, 2008, the Plaintiff, a father-friendly member, was making a move-in report on the instant apartment on August 21, 2008, and thereafter, he was living in the instant apartment along with the equipment and the equipment.

C. The Defendant filed an application for voluntary auction of the instant apartment under Article XX4 of the Suwon District Court around 2009, when the secured claim of the foregoing right to collateral was not recovered from the conciliation, and on June 9, 2009, the Defendant rendered a voluntary decision to commence the auction of the instant apartment.

D. On September 15, 2009, when the above Suwon District Court 2009, when the case of voluntary auction application was in progress, the Plaintiff filed an application for a report on rights and a request for distribution with the above execution court by asserting that there was a lease relationship between the above Suwon District Court 2009, when the case of voluntary auction application was in progress, the lease deposit amount of KRW 10,000,000 with respect to the apartment of this case. The Plaintiff filed an application for a report on rights and a request for distribution with the above execution court. The appraisal document prepared in the procedure of the above application for voluntary auction application is written that the co-owner is residing in the above apartment.

E. The Plaintiff and the Plaintiff were before and after around August 21, 2008, which filed a move-in report on the instant apartment.

While the lease contract was not prepared between the above Suwon District Court 2009No. 34 XX, among the above apartment buildings, the lessor was set up a lease agreement with the lessor as the grouping of the lessor with respect to one column among the above apartment units, and with respect to the lease deposit of KRW 10,000,000,000 (the lease deposit of KRW 1,000,000, the remainder amount of KRW 9,000, and KRW 000 was paid on August 5, 2008).

F. On February 17, 2010, when the case of voluntary auction application at Suwon District Court Decision 2009Ma34 around 2009 was continued, the apartment of this case was adjudicated to D. D., and on the date of open distribution on March 17, 2010, the above execution court filed a lawsuit of demurrer against the Defendant, the applicant for the second priority, with the head of Yeongdeungpo-gu Office, the delivery authority of KRW 1,450,620 among KRW 505, 366,972, which is the amount to be actually distributed, and KRW 503,916,352, which was distributed to the Plaintiff, by the applicant for the second priority, and the Plaintiff did not make any distribution to the Plaintiff from the date of the distribution to the above Defendant through the assistant, to KRW 10,000, and KRW 300,000, which was within 300,000.

G. At the time of the above distribution date, the sum of the Defendant’s claims against the Defendant’s protocol secured by the said right to collateral security on the apartment of this case was 766,350,092 won.

H. On the other hand, around July 7, 2008, at the account of the △△△△ Office in charge of licensed real estate agents, “A” in the office of the △△△△ Office in charge of licensed real estate agents.

On August 5, 2008, 1,000 won was deposited in the account of 1,00,000 won, and on August 5, 2008, 9,000 won was deposited from the account of 88 women to the account of 88 women, and 88 women as above 1,00,000 won was deposited in the account of 1,000,000 won, 8 check before the 1,000 foot, and 1,000 won was deposited in cash, and the resident registration number of her assistant on the 5 pages of the check of 1,00 won was changed.

[Grounds for recognition] Facts that there is no dispute or do not clearly dispute, Gap evidence Nos. 1, 2, 8, 9, 11, evidence Nos. 4 and 11, Eul evidence Nos. 1 and 2, Gap evidence Nos. 3, 5, 7, and 10, Eul evidence Nos. 3, 5, 7, and 10, and Eul evidence Nos. 3 (excluding the subsequent part rejection), Gap evidence Nos. 6-1, 2, and 3, and the purport of the whole argument Nos. 2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

(1) On July 2008, the Plaintiff entered into a lease agreement with the Plaintiff on July 1, 2008 on one column among the apartment units of this case, where the term of lease expires while he was residing in the Jung-gu, Seongbuk-gu, Sungnam-si x 1 x 1 x 1 m (hereinafter referred to as "No. 1 m. m. m. m.). At the time, there was a trend of redevelopment around the above residence, and it was difficult to obtain the deposit as the above lease deposit. In the case of friendly mara, the Plaintiff and m. entered into a lease agreement with the Plaintiff on one column among the apartment units of this case.

(2) Accordingly, the lease deposit for 10,00,00 won for 1,00,000 won for 1,00,000 won for 9,000, and 00 won for 1,00 won for 1,00 won for 1,00 won for 1,00 won for 1,000 won for 1,00 won for 1,000 won for 2, and the deposit for 1,00 for 1,00 out of the instant apartment in the manner that the Plaintiff received on behalf of the Plaintiff may be between the Plaintiff and the Plaintiff, and the Plaintiff continued to file the move-in report for 208 for 2,00.

(3) Therefore, the court of execution in the above Suwon District Court 2009Ma34 of the Housing Lease Protection Act shall exclude the distribution of the plaintiff to the plaintiff in the distribution table of the above voluntary auction application case on the ground that the execution court of the above lease agreement with respect to 1 column among the ASEAN of this case was made late and the fact that the above lease amount was received in advance is not clearly explained. Since this is illegal dividends, among the distribution table prepared on March 17, 2010, the above execution court's dividends against the defendant among the distribution table prepared on March 17, 2010, 10,000 won should be preferentially distributed to the plaintiff.

B. Determination

(1) In view of whether the Plaintiff is a legitimate lessee for one room among the apartment buildings of this case, the Plaintiff is not believed to have written some of the evidence Nos. 3, 5, 7, and 10, and evidence Nos. 3, 5, 7, and 10, corresponding thereto, and evidence Nos. 3, and the evidence Nos. 4 and 12, each of the evidence Nos. 8, 9, and 11, and evidence Nos. 6-1, 2, and 3 are insufficient to recognize it, and there is no other evidence to acknowledge it.

(2) Rather, (1) the Plaintiff and Cho Nam-nam branch. ② At the time of the transfer of the instant apartment, the Defendant had already established the right to collateral security at the time of the transfer of the instant apartment, with the maximum debt amount of KRW 840,00,000, and KRW 000, which the Defendant was the mortgagee, and the Plaintiff did not prepare a early lease agreement on the above apartment room 1 column while knowing the fact that the financial standing of ChoF is not good, ③ according to the appraisal report drawn up in the case of voluntary auction application at the district court 2009, 2009, 340, and 344, from the above district court 2009, the Plaintiff did not have any other relation with the lease. Considering the above circumstances, the Plaintiff’s right to collateral security was not submitted to the Plaintiff, the owner of the above apartment house, and the Plaintiff’s right to collateral security was not submitted.

(3) Therefore, inasmuch as there is no evidence to acknowledge that the Plaintiff is a legitimate lessee with respect to one square column among the apartment of this case, the distribution schedule prepared by the above execution court on March 17, 2010 is justifiable, since there is no reason to believe that the Plaintiff is a legitimate lessee with respect to one square column among the apartment of this case.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.

Judges Lee Jong-soo