(영문) 의정부지방법원고양지원 2016.01.15 2014가단39810

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(영문) 의정부지방법원고양지원 2016.01.15 2014가단39810

배당이의

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1. The instant lawsuit shall be dismissed.

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

Reasons

1. Basic facts

A. The Defendant brought a lawsuit seeking damages against the Defendant, as the High Government District Court Decision 2011Ga32436, that the Plaintiff paid KRW 64,347,118 to the Defendant, and the Defendant was sentenced to the judgment citing the Defendant’s claim as a result of the Plaintiff’s lawsuit proceeding while the Plaintiff was served with documents of lawsuit by service by publication.

B. The defendant filed an application for compulsory auction on real estate B with the Goyang-gu District Court Goyang-gu Branch of the plaintiff's real estate owned by the plaintiff as the executive title and the procedure was initiated.

C. In the above auction procedure, on November 18, 2014, the above court prepared a distribution schedule to the Defendant that distributes the total amount of 130,247,495 won to the Defendant, and that the Plaintiff distributes the surplus amount of 8,444,036 won to the Plaintiff.

Accordingly, on the date of distribution, the plaintiff raised an objection against KRW 30,000,000 among the amount distributed by the defendant.

On November 25, 2014, the Plaintiff filed a subsequent appeal against the judgment of the first instance court, and the said judgment was rendered on November 13, 2015, and the said judgment became final and conclusive around that time.

[Reasons for Recognition] Facts without dispute, entry of Gap evidence 1 to 6, the purport of the whole pleadings

2. Where the debtor raises an objection against the distribution schedule prepared in the distribution procedure, the creditor himself/herself, i.e., the creditor with an executory exemplification, who has raised an objection against the existence or scope of a claim, shall exclude the executory power of the executive titles, and thus, the debtor shall file a lawsuit of demurrer against the distribution and may not bring a lawsuit of demurrer against the distribution. A judgment with a declaration of provisional execution may not bring an objection against the claim unless the judgment becomes final and conclusive, but the debtor may exclude the executory power of the judgment by disputing the existence or scope of the claim and may be subject to a stay of execution. Therefore, the judgment with an executory power of the judgment,

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