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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. The gist of the Plaintiff’s assertion is that the Plaintiff distributed KRW 37,965,592 to the Defendant in this Court D distribution procedure case, but the Defendant received dividends based on false claims. Therefore, the Plaintiff asserts that the amount of dividends of KRW 769,730 to the Plaintiff in the distribution schedule prepared by the above court should be adjusted to KRW 20,274,40, and KRW 37,965,592 to the Defendant should be adjusted to KRW 18,460,922.
2. We examine the legitimacy of the instant lawsuit ex officio on the lawfulness of the instant lawsuit.
If there exists a seizure and collection order against the claim, only the collection creditor may file a lawsuit for performance against the garnishee, and the debtor shall lose the standing to file a lawsuit for performance against the seized claim.
(See Supreme Court Decision 2007Da60417 Decided September 25, 2008, etc.). Thus, in such a case, in a case where a third party files a lawsuit of demurrer against a seized claim, it is reasonable to deem that the debtor loses the standing to sue.
Comprehensively taking account of the overall purport of the arguments in evidence Nos. 1, 15, 16, and 17, Nonparty E received a seizure and collection order as to the Defendant’s right to claim dividend withdrawal as of November 18, 2016 by Seoul Central District Court 2016TT20766. Thus, the Defendant, the obligor, lost the eligibility for the Defendant. Accordingly, the instant lawsuit against the Defendant is unlawful since it was against the non-qualified person.
[A. According to the evidence evidence No. 2, the non-party F Co., Ltd. issued to the defendant a promissory note with a face value of KRW 1,00,000,000,000 at a sight on January 9, 2016 and with a maturity of KRW 1,00,00,00, and with a view to recognizing the immediate compulsory execution of the said promissory note (a notary public was issued with No. 13 of 2016, a law firm G deed). The evidence of the plaintiff's submission alone is that the defendant's claim is false.