Maapju-ro

[Defendant-Appellee] 1 others (Attorney Yoon-gu et al., Counsel for defendant-appellee)

December 17, 2004

1. The plaintiff's claims against the defendants are all dismissed.

2. Litigation costs shall be borne by the plaintiff.

Of the distribution schedule prepared by the same court on November 28, 2003 with respect to a compulsory auction case for real estate at the Seoul District Court's branch court's 2000 taeng 76355, the amount of dividends to the defendant Song-kong c. 30,000,000 and the amount of dividends to the limited company specializing in the securitization of the defendant Han-kung c. 3,954,612 shall be deleted, respectively, and the amount of dividends to the plaintiff shall be corrected to KRW 5,630,767 to KRW 39,585,379.

1. Basic facts

A. From March 1993, 1993, the non-party 1 corporation was newly constructed a west apartment on the land located in 324-8 of Gyeonggi-gun-gun, Gyeonggi-do, and borrowed funds from the plaintiff et al., and the plaintiff borrowed funds from the plaintiff et al. on December 22, 1998 about the third floor No. 306 of the above west apartment (hereinafter "the apartment of this case") with the government support of the Seoul District Court 98Kadan5423 on December 22, 1998. After receiving the provisional seizure order of KRW 512,453,00 on the real estate of KRW 512,453,00 on the 23th of the same month, the registration of provisional seizure was completed on the building of this case on the same day, and the registration of provisional seizure was completed on the same day.

B. On January 9, 199, the registration of the ownership right to the apartment of this case was made with respect to the apartment of this case, and on the same day, the registration of the ownership transfer based on the sale of one half of each apartment of this case was made from the westyang to the non-party Uisung and Kim Young-young, and on the same day, the registration of the establishment of the ownership right to the apartment of this case was completed with respect to the mortgage of this case in order to secure the loan obligations to the Postal Mutual Saving and Finance Company, the 105,000 won of the maximum debt amount, for the apartment of this case.

C. On February 9, 200, the Postal Mutual Savings and Finance Company Co., Ltd. transferred the above collateral security and secured debt to the Korea Mutual Savings and Finance Company, and entered into an additional registration on July 28 of the same year with regard to the above collateral security transfer, and the Korea Mutual Savings and Finance Company, a stock company, under the Asset-Backed Securitization Act, entered into a securitization assets transfer contract with a limited liability company specialized in the asset-backed securitization (hereinafter “Defendant Company”), on November 28, 200, and transferred the above collateral security and notified the transfer of the above collateral to the Korea Mutual Savings and Finance Company on February 15, 2001.

D. The plaintiff filed an application for a compulsory auction on the apartment of this case with respect to a compulsory auction on November 6, 2000 with respect to the above apartment of this case, for the purpose of collecting the claim for the loan against the Doangyangyang, and the above court sold the building and land of this case (site right) and sold the apartment of this case to increase the interest and execution expenses from the sale price, and distributed the amount of KRW 39,886,529 to the actual dividends. The specific details are as follows.

본문내 포함된 표 ＼ 대지권(원) 건물(원) 합계(원) 감정가 21,600,999 32,400,000 54,000,000 가격비율 40% 60% 100% 낙찰가 18,120,000 27,180,000 45,300,000 집행비용 2,516,748 3,775,122 6,291,870 이자 351,360 527,039 878,399 실제배당액 15,954,612 23,931,917 39,886,529

E. On November 28, 2003, the date of distribution of the above compulsory auction case, 39,86,529 won, the above court held that 301,150 won per annum to deliver (the pertinent tax related to building) the amount to be distributed to 39,86,529 won, and 30,000 won for the apartment of this case with the order of second priority as to 30,00,00 won for lease between Hayangyang, and 30,000 won for the above apartment of this case, and the period from May 1, 1995 to April 30, 1996, the above court concluded a lease contract with 30,00 won for the above dividends of 30,00 won for the principal and interest of 30,000 won for the above-mentioned collective auction case, 30,000 won for the above dividends of 30,000 won for each of the above dividends of 30,574,196,667,567, and 1974, respectively.

본문내 포함된 표 ？ 대지권(원) 건물(원) 합계(원) 실제배당액 15,954,612 23,931,917 39,886,529 당해세 301,150 301,150 피고 송춘순 12,000,000 18,000,000 30,000,000 잔액 3,954,612 5,630,767 9,585,379 피고 회사 3,954,612 3,954,612 원고 5,630,767 5,630,767

F. The Plaintiff appeared on the aforementioned date of distribution, and stated an objection against the Defendants among the distribution schedule of this case. The said court rejected this, and filed a lawsuit of demurrer against the distribution within one week thereafter.

[Evidence] Facts without dispute: Evidence Nos. 1, 2, and 2-1 to 3, 3, evidence No. 1-2, 2, 4, and the purport of the whole pleadings

2. Determination as to the claim against the defendant company

A. The plaintiff's assertion

Although the plaintiff made a provisional attachment only on the apartment of this case, the provisional attachment is also effective on the site right (right to use the site), which is a accessory to the building, and since the provisional attachment after the plaintiff's provisional attachment, the right to collateral security of the defendant company was transferred to the debtor after the transfer of the ownership of the apartment of this case, the right to collateral security of the defendant company was established as the debtor. Therefore, the defendant company cannot participate in the dividend within the limit of the claim amount at the time of the provisional attachment decision, which is the effect of provisional attachment, out of the proceeds of the sale of the building and the right to site (right to use the site) of the apartment of this case, which is the object of provisional attachment due to the effect of prohibition of disposal of provisional attachment, within the limit of the claim amount at the time of the provisional attachment decision, which is the effect of provisional attachment.

B. Determination

Article 20 (1) of the Multi-Unit Residential Building Act provides that "the right to use site shall be subject to the disposition of his/her section of exclusive ownership" and Article 20 (2) provides that "the sectional owner shall not dispose of the right to use site separately from his/her section of exclusive ownership: Provided, That this shall not apply where otherwise prescribed by the regulations." The main sentence of Article 358 of the Civil Act provides that "mortgage shall affect mortgaged real property and accessory property." In light of the provisions of Article 20 (1) and (2) of the Multi-unit Residential Building Act and the main sentence of Article 358 of the Civil Act, it shall be deemed that the remaining portion of the right to use site, which belongs to the exclusive ownership, has been deducted from that of the above section of exclusive ownership, due to delay in the division, lot of replotting and replotting procedure, delay in the ratio of shares of each household, and the effect of the mortgage established only before the ownership transfer registration on the portion of exclusive ownership has been made, and it shall be deemed that the right to use site last 20 to use site or 94.

3. Determination as to the claim against the defendant Song-hwan

A. The plaintiff's assertion

The Plaintiff asserts that the above Defendant, without entering into an actual lease agreement with the Hayang-dong, did not pay the lease deposit, and as if he were the lessee of the apartment of this case, such as preparing related documents and making a moving-in report on the resident registration, etc., the Plaintiff received a dividend of KRW 30,000,000 of the above lease deposit amount under the distribution procedure of this case. Therefore, the Defendant, the largest lessee in the distribution schedule of this case, should delete the above amount received by the above Defendant and revise the distribution schedule by receiving the distribution

B. Determination

In light of the above facts, the above non-party 4, 5, 6, and 7's each of the above non-party 2 and the testimony of the non-party 2 and the non-party 3, the above defendant did not pay rent of 30,000 won to the non-party 2, who was in charge of the sale of the apartment of this case, and the above non-party 3 had the above non-party 1 and the above non-party 2 paid the above rent to the non-party 3 for the above non-party 9's provisional disposition against the above non-party 9's possession of the apartment of this case's non-party 1 and the non-party 2's non-party 3's non-party 2's non-party 1 and the above non-party 3's non-party 2's non-party 3's non-party 1's non-party 3's non-party 1's non-party 2's non-party 3's non-party 2's non-party 3's non-party 2's.

3. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is dismissed in its entirety as it is without merit. It is so decided as per Disposition.

Judges Kim Tae-sung