(영문) 대구지방법원 2019.09.27 2018가단15823

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(영문) 대구지방법원 2019.09.27 2018가단15823

배당이의

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1. Of the distribution schedule prepared by the Daegu District Court on July 16, 2018 with respect to D's voluntary auction of real estate.

Reasons

1. Basic facts

A. On July 17, 2017, at the request of the Plaintiff, who was a collateral security right holder, with respect to F land of Cheongdo-gun, Cheongbuk-do-gun, and G Manstion H (hereinafter “instant housing”), the said court prepared a distribution schedule (hereinafter “instant distribution schedule”) stating that the said court distributes KRW 14,00,000 to the Defendant (the highest priority lessee) on July 16, 2018, and KRW 51,280,482, to the Plaintiff (the applicant creditor and the mortgagee), who was a collateral security right holder, the amount of KRW 51,280,482.

B. On July 23, 2018, the Plaintiff filed an objection to the total amount of the Defendant’s dividends on the date of distribution, and thereafter filed the instant lawsuit.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, and 9, the purport of the whole pleadings

2. The parties' assertion

A. The Plaintiff, in collusion with E, the owner of the instant housing, prepared the instant lease agreement by falsity, and the Defendant received dividends pursuant to the Real Estate Lease Protection Act in the instant auction procedure based on the aforementioned lease agreement, and thus, the amount of dividends to the Defendant should be deleted.

B. The Defendant lent KRW 18 million to Defendant E in around 201, and agreed to substitute for the payment of deposit for lease under the instant lease agreement. Since the Defendant is a genuine lessee residing in the instant house from October 22, 2013, it constitutes a small-sum lessee under the Housing Lease Protection Act, and the instant distribution schedule prepared with the content of allocating KRW 14 million to the Defendant is justifiable.

3. Determination

A. The burden of proof as to the grounds for objection against distribution in a lawsuit of demurrer against distribution is in accordance with the principle of distribution of the burden of proof in general civil procedure. Therefore, in a case where the plaintiff asserts that the defendant's claim has not been constituted, the defendant is liable to prove the grounds for the claim

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