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1. Of the distribution schedule prepared on August 28, 2017 by this Court with respect to cases of compulsory auction against immovables B and C (Dual).
Reasons
1. Basic facts
A. In this Court B and C (Dual Real Estate Auction Case), the debtor is D Co., Ltd., and the selling real estate is five land and buildings located in Gyeonggi-gun E-gun Co., Ltd., which are owned by D as follows:
(1) F forest land: (2) Shares of 83/1,354 square meters in G forest land, among 1,354 square meters in G forest land; (3) Shares of 1/16 of the D-ownership of a stock company among 32 square meters in H road; (4) Single-story housing with two floors in F-run ground (F-dong)
B. According to the distribution schedule prepared in the instant auction case on August 28, 2017, the Plaintiff received dividends of KRW 78,205,423 out of the amount of claims of KRW 104,317,552 in the second priority as a mortgagee, and the Defendant received dividends of KRW 10,90,833 out of the amount of claims of KRW 325,00,000 as a person holding a provisional attachment.
[Reasons for Recognition] The Evidence No. 1-5 and Evidence No. 2-1
2. Determination
A. The plaintiff's assertion is acknowledged as a right to preferential payment against the defendant, who is a junior provisional attachment creditor. Thus, the plaintiff's claim should be paid dividends by absorbing the amount of distribution that the defendant receives until the plaintiff's claim
B. A person who has a right to preferential payment with respect to a junior provisional attachment claim, may receive payment with a right to preferential payment from the amount of such claim until the amount of his/her claim satisfies the amount of his/her claim (see, e.g., Supreme Court Decision 91Da4407, Mar. 27, 1992). The above legal principle is reasonable to deem that the relationship between a mortgagee and a junior provisional attachment creditor should also be
However, according to Gap evidence Nos. 1-1 through 5, the date the defendant completed the registration of provisional seizure on five real estate sold in the auction case of this case is August 2, 2016. The date the plaintiff completed the registration of provisional seizure on August 5, 2015 (i.e., (ii), (iii) or June 27, 2016 (iv.e., the No.