The standing to sue to file a lawsuit of demurrer against distribution is unlawful.

The distribution of the portion equivalent to the deposit for repayment by the execution court to the Republic of Korea is merely that it complies with the collection of the Republic of Korea, which is the seizure authority for the claim for payment of deposit money by the deposited parties, and thus, cannot be viewed as falling under the creditor entitled to deposit money due to the exercise of his subrogation right at the time of the preparation of

2012 Gohap 51820 Demurrer

AAAA Capital Inc.

BBCC Co., Ltd. and one other

April 26, 2013

June 14, 2013

1. The plaintiff's lawsuit against the defendants is dismissed in entirety.

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

Of the dividend table prepared on December 26, 2012 by the above court with respect to the distribution procedure case of Kubu District Court Yangyang-dong 2012Tz. 2224, KRW 000 of the dividend amount for Defendant BBC Co., Ltd. against Defendant Republic of Korea shall be corrected to KRW 000,000, and the dividend amount for the Plaintiff shall be corrected to KRW 000,000, respectively.

1. Basic facts

A. On October 6, 2008, the non-party CC entered into a contract to lease on a deposit basis with the non-party Doddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

B. On October 5, 2009, the Plaintiff loaned 3-month fluctuation rate (standard interest rate of 6.35%) and 000 won to thisCCC as of October 6, 2010. In order to secure the repayment of the above loan claims, the Plaintiff entered into a mortgage contract with the maximum debt amount of the instant chonsegwon as to the right to lease on a deposit basis as of October 7, 2009, and completed additional registration of the establishment of the right to lease on a deposit basis as above.

C. On October 6, 2010 (the original expiry date of the right to lease on a deposit basis of this case) and the right to lease on a deposit basis of this case shall be reduced to KRW 000,000, and the duration of this right shall be extended to October 6, 2012, and the contract was concluded to change the right to lease on a deposit basis with the effect that the right to lease on a deposit basis of this case shall be extended to October 6, 2

D. Around March 2012, thisCCC agreed to establish a lease on a deposit basis with ADD and the instant lease on a deposit basis, and delivered the instant partitioned building to ADD.

E. On August 2, 2012, Defendant BBC Co., Ltd. (hereinafter “Defendant Company”) received a seizure and collection order for KRW 000 out of KRW 000,000, out of 00,000, from this court’s 2012TD as to the instant right to lease on a deposit basis on the deposit basis of the instant right to lease on a deposit basis. On August 6, 2012, the above seizure and collection order was served on ASEAN.

F. Accordingly, on August 14, 2012, ADD claims that the Plaintiff completed the registration of the establishment of a neighboring mortgage on the instant chonsegwon, and that the Plaintiff acquired the above claim for the return of the lease deposit from CCC. Thus, the obligee for the return of the lease deposit cannot be identified as either thisCC and the Plaintiff, and the Plaintiff’s deposit was served with the Defendant Company on the grounds that the Defendant Company’s above seizure and collection order was served. The Plaintiff and the Defendant Republic of Korea did not take measures such as seizure of the said claim for the lease deposit (this Court No. 2734, 2012; hereinafter “the instant deposit”) based on the latter part of Article 487 of the Civil Act and Article 248(1) of the Civil Execution Act and the latter part of Article 248(1) of the Civil Execution Act.

G. On November 28, 2012, after the notification of the reasons for the above deposit of ADD, the head of the Goyang District Tax Office under the jurisdiction of the Republic of Korea attached the right to claim the payment of the deposit money of this case held by CCC against the Defendant Republic of Korea. On December 3, 2012, the notification of the seizure was served on the Defendant Republic of Korea (U.S. government branch court in which the deposit money of this case was actually deposited) who is the third debtor. The distribution procedure of this case was conducted on December 26, 2012, the execution court prepared the distribution schedule in the order of 100 won to the Defendant company, the collection authority, who is the right holder of the right to claim the payment of the deposit money of this case and the amount actually deducted the execution expenses from the principal and interest of the deposit of this case on December 26, 2012.

A. The plaintiff is present on the date of the above distribution and the plaintiff made a statement of objection to the distribution against the whole amount of the defendants

After this, the instant lawsuit was filed on December 31, 2012.

(j) On May 10, 2013, when the lawsuit of this case is pending, the Plaintiff submitted to the executing court documents attesting the existence of the security right in order to exercise the subrogation right against the above claim for the deposit money refund, and received the seizure and collection order as to the claim for the refund of the deposit money of this case held by this Court by this Court 2013T to the Defendant Republic of Korea. The above seizure and collection order was issued around that time. The third debt of this Court.

The defendant was served to the defendant Republic of Korea.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 8, Eul evidence 1 and 2, the purport of the whole pleadings

2. Ex officio determination as to the legitimacy of the Plaintiff’s lawsuit against the Defendants

A. The plaintiff's ground of claim

1) The Plaintiff was a mortgagee of the instant right to lease on a deposit basis, but it was impossible to seize the claim for return of the said right to lease on a deposit basis prior to the expiration of the lease period of the said right to lease on a deposit basis. However, the Defendants were aware of the existence of the Plaintiff’s prior right to lease on a deposit basis, and thus, the Defendants anticipated to be distributed only to the Defendants except the amount of the Plaintiff’s claim secured by the said right to lease on a deposit basis.

2) On October 7, 2009, the Plaintiff acquired the said right to collateral prior to the statutory date for the above right to claim payment of deposit money against the Defendant Republic of Korea, by completing the registration of establishment of a neighboring mortgage on the instant right to lease on a deposit basis in this case. During the course of the instant lawsuit, the Plaintiff was required to exercise the subrogation right as a mortgagee on a deposit basis with the right to claim payment of deposit money in this case by obtaining the seizure and collection order from the Defendant Republic of Korea. Therefore, the Plaintiff should receive the instant deposit in preference to Defendant Republic of Korea.

3) Therefore, among the instant distribution schedule, the said distribution schedule should be revised by reducing the dividend amount of the Defendant Company to KRW 000,000, and the dividend amount of the Defendant Republic of Korea to KRW 000,000, respectively, and distributing the amount to the Plaintiff as a total of KRW 000,00,000, which

B. Determination

1) The progress of the distribution procedure in this case by the court of execution

In a case where a debtor makes a mixed deposit due to the cause for the repayment deposit under the latter part of Article 487 of the Civil Act and the cause for the execution deposit under Article 248(1) of the Civil Execution Act, the executing court shall not proceed with the distribution procedure until the time when the creditor of the original right to receive the amount deposited through the confirmation of the transfer of claims becomes final and conclusive. As such, the executing creditor of the above deposit shall submit to the executing court the document proving that the claim subject to seizure belongs to the executing debtor for the distribution of the amount of the above deposit, for example, the original confirmation of the judgment proving that the debtor has the right to claim the deposit, a copy of the same contents, and a written consent with a seal impression of the transferee, etc. (see Supreme Court Decision 2006Da56015, Jan. 17, 2008). However, in light of the facts acknowledged in the above basic facts and the purport of the whole pleadings, the plaintiff shall be deemed to have come to belong to the execution court of this case as well as the above DCC's deposit.

2) The nature of the deposit under Article 248(1) of the Civil Execution Act

Article 248 (1) of the Civil Execution Act provides that "third party obligor shall deposit the full amount of monetary claims related to seizure."

In light of the above, if only a part of the monetary claim was seized but only a part of the monetary claim was deposited under Article 248(1) of the Civil Execution Act, the monetary claim which has the effect of seizure should be considered as an execution deposit as a matter of course. However, since the part exceeding the amount of seizure does not have the effect of seizure, it shall be deemed as an execution deposit rather than an execution deposit (see, e.g., Supreme Court Decision 2006Da74693, May 15, 2008). However, AD deposited KRW 180,000,000, which is the full amount of the monetary claim, even though it was seized by the Defendant company, as seen in the above basic facts. Since the deposit of this case constitutes a deposit under Article 248(1) of the Civil Execution Act, the part of the money deposited by the Defendant company which affects the execution of this case constitutes a seizure deposit.

The excess amount is the deposit for repayment.

3) Whether the plaintiff is standing to sue

A) On the expiration of the term of chonsegwon, the mortgagee on chonsegwon has become unable to exercise the mortgage on the right to lease on his own. In such a case, Articles 370 and 342 of the Civil Act, and Article 273 of the Civil Execution Act may exercise his/her right by means of issuing a collection order or issuing a demand for distribution in the compulsory execution procedure conducted by a third party. The proviso to Articles 370 and 342 of the Civil Act provides that the mortgagee shall attach the money or other things to be received by the mortgagee to exercise the right to demand distribution or delivery of the right to demand distribution under the premise that the obligor cannot preserve the specific nature of the claim which is the object of subrogation and preserve the effect of the right to demand distribution against the third party, and that the mortgagee who has exercised the right to demand distribution under the premise that the obligee’s right to demand distribution should not be deemed to exist in lieu of the right to demand distribution by the lawful method within the said period (see, e.g., Supreme Court Decision 201Da372979, Mar. 26, 2008).

B) First of all, pursuant to the above legal principles, the plaintiff is standing to sue the lawsuit of this case against the defendant company.

According to the facts found in the above facts, the distribution schedule was prepared to receive the part of 000 won having the effect of its seizure among the above deposit in the distribution procedure for the deposit of this case. The plaintiff is not entitled to file a lawsuit of demurrer against the defendant who received dividends from the execution deposit of this case until August 14, 2012, which is the date on which the contract to establish a right to lease on a deposit of this case had already been terminated due to the termination of the agreement between the parties concerned. Since the contract to lease on a deposit of this case is deemed to exist in lieu of the right to lease of this case, which is the date on which the contract to lease of this case had already been completed to demand a distribution, until August 14, 2012, which is the date on which the contract to lease on a deposit of this case was reported, the collection order or the whole order was issued, or the defendant company did not exercise its right by means of demanding a distribution in the compulsory execution procedure with regard to the claim to return the deposit of this case.

C) Next, in the event of so-called mixed deposits made by the Republic of Korea with payment deposit under the Civil Act regarding whether the plaintiff is entitled to standing to sue in the lawsuit of this case against the defendant Republic of Korea, there is a dispute over the amount of payment or repayment under the distribution schedule, it would be reasonable to settle the dispute by settling it in a lump sum pursuant to the single procedure, called a lawsuit of demurrer against distribution. Accordingly, even if the plaintiff has a right to payment or payment in the deposit, he/she may file a lawsuit of demurrer against the other creditors stating that he/she is entitled to payment in the distribution schedule (see, e.g., Supreme Court Decision 2003Da29456, Jan. 26, 2006). However, in light of the facts acknowledged in the above basic facts and the whole purport of arguments, the court of execution should have prepared only the deposit funds in the process of executing the distribution schedule of this case, and the part of the deposit funds in this case shall not have the effect of the plaintiff's right to claim payment in the procedure of collecting dividends of this case against the plaintiff's deposit funds.

D) Therefore, the Plaintiff’s lawsuit against the Defendants is unlawful since it has no standing to sue.

3. Conclusion

Therefore, since the plaintiff's lawsuit against the defendants is unlawful, it is so decided as per Disposition by the assent of all.