Plaintiff (Law Firm Law, Attorneys Hong Jin-jin et al., Counsel for plaintiff-appellant)

Defendant 1 and three others (Law Firm Ro-Hy, Attorneys Kim Wo-su, Counsel for the defendant-appellant)

May 4, 2011

1. Of the distribution schedule prepared by the above court on October 12, 2009 with respect to a compulsory auction case against the defendant in Suwon District Court's branch office, the amount of 8,066,607 won against the plaintiff shall be 24,088,810 won, and the defendant 1 (the amount of 40,000,000 won against the defendant in the Supreme Court and the second instance judgment shall be 26,66,666 won, and the amount of 2,68,869 won against the defendant 4 shall be corrected to 0 won, respectively.

2. Defendant 1 shall pay to the Plaintiff 26,66,66 won with an amount calculated by the rate of 20% per annum from October 31, 2009 to the date of full payment.

3. The plaintiff's claim against the defendant 2 and 3 is all dismissed.

4. Of the costs of lawsuit, the part arising between the Plaintiff, Defendant 2 and Defendant 3 shall be borne by the Plaintiff, and the part arising between the Plaintiff, Defendant 1 and Defendant 4 shall be borne by the Plaintiff, respectively.

5. Paragraph 2 can be provisionally executed.

Of the distribution schedule prepared by the above court on October 12, 2009 with respect to the compulsory auction case for real estate at Suwon District Court Branch Decision 2009Ma568, Suwon District Court Decision 2009, the dividend amount of 8,066,607 won against the plaintiff shall be 37,647,339 won, the dividend amount of 40,00,000 won against the defendant 1 shall be 26,666,666 won, and the dividend amount of 6,38,212 won against the defendant 2 shall be 0 won, the dividend amount of 7,170,317 won against the defendant 3, and the dividend amount of 2,68,869 won against the defendant 4 shall be corrected to 0 won, respectively.

1. Basic facts

A. The land of this case (hereinafter “instant land”) was owned by the Plaintiff Co., Ltd. (hereinafter “Dain Public Co., Ltd.”) and the Plaintiff Co., Ltd. (hereinafter “Dain Public Co., Ltd.).

B. As to the land of this case, ① The provisional attachment registration of Defendant 3 was made in the name of Defendant 4 for the provisional attachment as of May 18, 1998 with No. 1284, which was as of May 15, 1998 (Seoul District Court 98Kahap446), and the provisional attachment registration of Defendant 160,000 won for the provisional attachment as of May 15, 1998; ② the provisional attachment order of 15305 on June 15, 1998 (U.S. District Court 98Kadan2145), and the provisional attachment registration of Defendant 20,000 won as of June 15, 1998 (U.S. District Court 90,000,000 won as of 60,000 won, ③ the provisional attachment registration of Defendant 4 with the name of Defendant 20,000,000 won as of July 13, 1998.

C. The plaintiff filed a claim for the return of the sale price of KRW 180,000 against the neighboring public entity as the principal case of the provisional seizure mentioned in the above paragraph (b) (the Incheon District Court 2009Gahap789), and the above court rendered a judgment in favor of the plaintiff on October 15, 2009, and the above judgment became final and conclusive around that time.

D. On the other hand, Defendant 2 applied for a compulsory auction on the instant land pursuant to a written decision in lieu of conciliation in the final conciliation in the Suwon District Court case 98da7355 (9s.625) among the neighboring public officials, and issued a decision to commence compulsory auction on January 20, 2009 (U.S. District Court Decision 2009Ma568), and the instant land was sold to Nonparty 1 and 2 on September 1, 2009 through the auction procedure.

D. On October 12, 2009, on the date of distribution of the above auction case, the distribution schedule was prepared as follows: 64,454,255 won which was to be actually distributed; 140,250 won which was to be distributed among the date of distribution; 140,250 won which was to be distributed to the female-owner of the pertinent tax payer; 40,06,600 won which was to be distributed to Defendant 1, the mortgagee of the second priority order; 8,06,607 won which was to be attached to the Plaintiff, the mortgagee of the provisional attachment; 7,170,317 won was to be distributed to Defendant 3; 2,68,869 won which was to be distributed to Defendant 2, the applicant creditor; 2,388,212 won was present on the date of distribution; the Plaintiff brought a lawsuit as to the remaining amount after deducting the principal and interest from Defendant 1 among the above distribution schedule; 200,006th day of this case.

[Ground of recognition] Facts without dispute, entry of Gap 1 to 5 evidence, purport of the whole pleadings

2. Determination as to the claim against Defendant 1

A. The plaintiff's assertion

The plaintiff asserts that, as long as Defendant 1's claim on the right to collateral security does not exist beyond KRW 10,00,000 in which the deposit details were confirmed, and as long as the public interest is a merchant, the five-year extinctive prescription has expired, the plaintiff, the creditor of the green public, can invoke the benefit of extinctive prescription by subrogation of the green public interest. As such, among the dividend amount of Defendant 1, the part against which the plaintiff raised an objection should be distributed to the plaintiff, and the other part should be returned to the plaintiff because Defendant 1 made unjust enrichment.

B. Determination

Therefore, even if Defendant 1 actually lent KRW 30,00,00 to Defendant 1, even if it was the creditor, the company's act is presumed to have been conducted for its business unless there is any counter-proof. The company's act for its business is regarded as a commercial activity. The company's act for both parties is not only a commercial activity but also a claim arising from an act that constitutes only one of the parties as a commercial activity. It constitutes a commercial claim to which the five-year statute of limitations under Article 64 of the Commercial Act applies. Since Defendant 1 used the money borrowed from Defendant 1 as a sales price for its business, as long as it is used for the money borrowed from Defendant 1 as a commercial claim for its business, the above loan claims against Defendant 1 against Defendant 1 are subject to five-year extinctive prescription as a commercial claim. Accordingly, the plaintiff who has the above judgment bond against Green Public Corporation can claim the completion of the extinctive prescription period by subrogation of the debtor for the purpose of preserving the above claim, and there is no special evidence as to the above claim against Defendant 16.

Therefore, the above-mortgage of Defendant 1 on which the secured debt has been extinguished is also null and void. Since Defendant 1 received dividends from the above auction procedure based on the claim on the right on the right on the right on the right on the right on the right on the right on the right on the right on the right on the right on the right on the right on the right on the right on the right on the right on the right on the

B. Sub-determination

Therefore, among Defendant 1’s dividends of KRW 40,000,000, Defendant 1’s dividends of KRW 13,333,334 (Defendant 1’s principal amount of KRW 30,00,000 and interest KRW 10,00,000 and interest KRW 10,000. According to this, the interest for KRW 20,000 shall be KRW 666,666,6666) shall be distributed to the Plaintiff. Defendant 1, as unjust enrichment, is obligated to pay the Plaintiff for the amount of KRW 26,66,666 and delay damages sought by the Plaintiff.

3. Determination as to the claim against Defendant 2

A. The burden of proving a lawsuit of demurrer against distribution

The burden of proof in a lawsuit of demurrer against distribution shall be in accordance with the principle of allocation of burden of proof in general civil procedure. Therefore, in a case where the plaintiff claims that the defendant's claim has not been constituted, the defendant is liable to prove the facts of the cause of the claim, and in a case where the plaintiff claims that the claim has become null and void as a false declaration of agreement or has become extinguished by repayment, the plaintiff is liable to prove the facts constituting the cause of disability or extinguishment (see Supreme Court Decision 2005Da39617, Jul.

B. Determination

In light of the above legal principles, Defendant 2’s claim against Defendant 2’s green public service is confirmed in lieu of the conciliation of this Court as seen earlier, and thus, it is deemed that there exists a claim against Defendant 2’s green public service. Accordingly, the Plaintiff asserted that Defendant 2’s claim against Defendant 2’s green public service is a non-existent claim because it is the same as the price of the materials claimed against Defendant 3 (Ywon District Court Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch 2004Ga6834). However, it is difficult to view that Defendant 2’s claim against Defendant 2’s green public service, Defendant 3, and Nonparty 3 did not file an appeal against the judgment in favor of all Defendant 2, and it is final and conclusive as it did not file an appeal against the judgment in favor of all Defendant 2. As long as it appears that Defendant 2 sought the material price in each lawsuit and sought joint and several liability of Defendant 3 and Nonparty 3, Defendant 3 did not appear to have been executed for a long time other than Defendant 2’s public service.

C. Sub-decision

Therefore, the plaintiff's claim against the defendant 2 on the premise that there is no claim against the defendant 2 for the public.

4. Determination as to the claim against Defendant 3

Although the Plaintiff asserts that there is no claim against the Defendant 3 for its green public service, in full view of the purport of the entire arguments as a result of the Defendant’s examination, Defendant 3’s claim against the Defendant 3 on the ground that, although Defendant 3 received a supply of a single house construction project from the Young-gun in the Gyeonggi-gun in the Gyeonggi-do, it was not paid the construction cost, and that the unpaid construction cost is at least KRW 160,00,000, which is the claim amount of the provisional seizure, at least KRW 160,000,000, it is reasonable to deem that Defendant 3’s claim for the construction cost against the Green public service exists. On the contrary, it is reasonable to deem that the Plaintiff’s claim against Defendant 3 on the premise that there is no claim against the Green public service by Defendant 3 on the premise that there is no claim against Defendant 3 on the said Green public service (other than the Plaintiff’s claim against Defendant 3, who was appointed by his agent, did not dispute the fact that Defendant 3 had a claim against the said green

5. Determination as to the claim against Defendant 4

As seen earlier, in a lawsuit of demurrer against distribution, the defendant is liable to prove the fact of the cause of the claim to the defendant. Since the defendant 4 did not submit any evidence to prove the existence of the claim to the public service, the plaintiff's claim against the defendant 4 is justified.

6. Conclusion

If so, the plaintiff's claim against the defendant 1 and 4 is justified, and the claim against the defendant 2 and 3 is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-soo