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(영문) 광주고등법원 2018.11.23 2018나20827
배당이의
Text

1. The judgment of the first instance, including the conjunctive claims added by this court, shall be modified as follows.

Reasons

1. The reasoning for this part of the judgment of the court is the same as that of the corresponding part of the judgment of the court of first instance.

2. Judgment as to the main claim

A. 1) Whether the Defendant’s right to indemnity against I is acquired or not, the Plaintiff’s assertion I (RepresentativeJ) made an advance payment of expenses for delegated affairs. The Plaintiff entrusted the Defendant with the affairs that the Defendant would obtain 1/2 shares owned by D out of each of the instant real estate by winning a successful bid, and paid KRW 400 million to the expenses for delegated affairs.

Accordingly, the defendant paid the secured debt to F, a joint mortgagee of the first priority.

However, one-half of the shares is the debtor I, which eventually is the debtor I, and the first-half of the shares is the repayment of his/her obligation with his/her own funds on the ground of the defendant.

Therefore, the Defendant cannot acquire 1/2 shares, which are the part of the first priority joint collateral security in the instant case, by subrogation. Therefore, the Defendant’s receipt of dividends related to the said part in the distribution procedure (i.e., the Defendant’s distribution amount of KRW 613,938,190 x 1/2) must be revoked unfairly, and the said dividend amount should be distributed to the Plaintiff, which is the subordinate collateral security holder.

B) Determination Gap evidence Nos. 3, 5, and 12, Eul evidence Nos. 3 (including virtual numbers) and Eul evidence Nos. 3 (In full view of the whole purport of the arguments, I and the defendant, around 2016, in order for Eul and the J to acquire D’s share 1/2 of each of the real estate of this case, the defendant, who paid the full amount of the secured debt of the first priority joint collateral mortgage of this case to F and acquired the first priority joint collateral security by subrogation of the person who performed the repayment, and then requested voluntary auction of the first and second share owned D’s share in the auction procedure, and the defendant purchased it by I and J, respectively.

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