The legitimacy of the assertion that the distribution of the dividend of the discretionary auction procedure based on the establishment of the right to collateral security by public offering is void

Since there is no evidence to prove that the establishment registration of the neighboring property by public offering was completed, the registration and the title trust registration based on such registration cannot be asserted as invalid, and the dividend by auction is legitimate.

The contents of the decision shall be the same as attached.

1. Of the judgment of the court of first instance, the part on which the correction of the distribution schedule against the amount of 20,269,995 won of the amount of the fifth-order distribution against the defendant Kim Jong-soo shall be revoked, and the plaintiff's lawsuit corresponding to the revoked part shall

2. The Plaintiff’s appeal against Defendant ○○-gu Seoul Special Metropolitan City, Korea, National Health Insurance Corporation, and ○○○, and the remaining appeals against Defendant Kim Jong-soo are dismissed, respectively.

3. All costs of appeal shall be borne by the Plaintiff.

The judgment of the court of first instance shall be revoked. With respect to the auction of real estate (Seoul Southern District Court Decision 2004Ma49249), among the dividend table prepared by the above court on October 30, 207, the dividend amount of 3,734,910 won, 8,378,470 won, 8,378,910.08 won, and 3,770,761.47 won, and each dividend amount of 90,000,000 won, 20,269, 95 won, 40,53.51 won and 9,122,586.36 won and 9,15,351,850 won for the defendant's Republic of Korea, 6,909,15,900 won and 8,3785 won for the defendant's Republic of Korea, 281,6384,2685,294,5,285, and 2814.38

1. Basic facts

The court's reasoning in this part is as follows: (a) the first instance court's " September 27, 2007," which read " September 17, 2007," which read " September 17, 2007," and (b) are the same as the corresponding part of the court's decision in the first instance, and therefore, (b) the court's reasoning in this part is accepted in accordance with the main sentence of Article 420 of the Civil Procedure Act.

[E] In allocating the amount of KRW 177,038,40 to be actually distributed by opening a date of distribution on October 30, 2007, the Seoul Southern District Court prepared the distribution schedule in the order of 1,734,910 won, 8,378,470 won, 300 won, 90,000 won, 15,351,850 won, 46,284,640 won, 20,640 won, and 20,269,95 won, 305 won, 305,000 won, 30,000 won, 300,000 won, 300,000 won, 4,000 won, 284,640 won, and 177,000 won, 269,995 won, and 20,000 won, 35,018,539.

바. 이에 소유자는 원고는 배당기일에 피고 서울특별시 ○○구청의 1순위 1ㅐ당액 3,734,910원 중 2,054,000원, 3순위 배당액 8,378,470원 중 4,607,709원, 피고 김○채의 2순위 배당액 90,000,000원 중 49,495,166원, 피고 대한민국(양천세무서)의 3순위 배당액 15,351,850원 중 8,442,693원, 국민건강보험공단의 4순위 배당액 6,284,640원 중 3,456,214원, 피고 ○○의 5순위 배당액 33,018,539원 중 29,305,832원에 대하여 각 배당이의를 하고, 2007. 11. 5. 이 사건 배당이의의 소를 제기하였다]

2. Determination as to the legitimacy of the part on which the correction of the distribution schedule regarding the fifth-order dividend amount among the lawsuit in this case against Defendant Kim Jong-soo was sought

On the other hand, a lawsuit of demurrer against a distribution filed by an owner in an auction for the exercise of a security right shall be filed against the creditor to the extent that he/she has raised an objection against the dividend amount of the creditor stated in the distribution schedule. According to the above facts, the plaintiff raised an objection only against the dividend amount of the second order of the defendant Kim Jong-sung, and did not raise any objection against the dividend amount of the 20,269,95 won, which is the fifth order distribution amount.

Therefore, this part of the lawsuit against the defendant Kim Jong-soo is unlawful as it was brought against the part against which no objection is raised under the distribution schedule.

3. Judgment on the merits

A. The plaintiff's assertion

The plaintiff asserts that since the real estate, which is the object of the right to collateral security, as the object of the right to collateral security, was the ownership of the above registry No. 5 of the above registry and that of the plaintiff No. 23 of the above registry No. 102.4/1,117.2 of the plaintiff's shares (the shares of February 117, 207), the execution court decided to commence auction as to the shares of Yellow iron No. 5 of the plaintiff No. 24 of the above registry and the plaintiff's shares (the shares of April 1, 102, 117.2 of the plaintiff No. 24 of the above registry) and the decision to permit sale of the real estate on the plaintiff No. 24 of the above registry, the above auction procedure had been completed without being able to obtain dividends from the sale price of the plaintiff No. 24 of the above plaintiff's shares, and the defendants, the plaintiff No. 1 and the plaintiff No. 24 of the above right to collateral security, who were the plaintiff No. 24 of the above plaintiff and the plaintiff No.

B. Determination

(1) First, we examine the argument ①

The statement of evidence No. 1 is insufficient to recognize the plaintiff's assertion that the auction court conducted the auction procedure by making the plaintiff's share of No. 24 of the plaintiff No. 102.4/1,117.2 of the plaintiff's share of No. 23 of the plaintiff's share of No. 102.4/1,117.2 of the plaintiff's share of No. 23 of the auction court prior to the registration of correction, and there is no other evidence to

Rather, according to the above facts, real estate in fact subject to auction is the Plaintiff’s share No. 23, which is 102.4/1,117.2 shares among the Plaintiff’s share No. 23, and the auction procedure was conducted. However, it is reasonable to deem that it was merely registered as a decision to commence auction as to the Plaintiff’s share No. 24 due to an error in the entry in the registry,

Therefore, this part of the plaintiff's assertion is without merit.

(2) Next, even if the health team, the Plaintiff, and the Yellow A, etc. were in the relationship of mutual title trust with the co-ownership of sectional ownership, insofar as Defendant Kim ○ Bank completed the registration of establishment of a neighboring mortgage based on the registration, it cannot be asserted that the registration of establishment of a neighboring mortgage or the registration of title trust, which was the basis thereof, was null and void. Furthermore, there is no evidence to acknowledge that Defendant Kim ○ Bank was completed the registration of establishment of a neighboring mortgage in collusion with the Yellow ○ Industries with the knowledge of such circumstance, and therefore,

4. Conclusion

Therefore, the part of the lawsuit of this case against defendant Kim Jong-soo seeking correction of the distribution schedule of 20,269,95 won among the five-order dividends of this case is unlawful, and thus, it is dismissed. The judgment of the court of first instance on this part is unfair, and the plaintiff's lawsuit corresponding to the revoked part is dismissed. The plaintiff's remaining claims except for the plaintiff's claim against defendant ○○-gu, Seoul, Korea, the National Health Insurance Corporation, ○○, and the dismissed part as above against defendant Kim Kim-soo are all reasonable, and the judgment of the court of first instance on this part is just, and the plaintiff's appeal as to this part is dismissed, and it is so decided as per Disposition.