A. In order to secure a claim against A, the Plaintiff completed the registration of creation of a neighboring establishment with respect to each real estate listed in the separate sheet owned by A (hereinafter “each of the instant real estate”) with a maximum debt amount of KRW 1,040,000,000 on August 26, 2013.

(hereinafter the above right to collateral security (hereinafter “instant right to collateral security”)

B. On September 13, 2013, the Central M&C Co., Ltd. completed the registration of the establishment of a neighboring mortgage with the maximum debt amount of KRW 1,500,000,000 on each of the instant real estate as well as the registration of the establishment of a neighboring mortgage amount of KRW 1,500,000 on December 16, 2013. Based on the foregoing collateral security, it filed an application for voluntary auction with the Gwangju District Court Branch B on each of the instant real estate, and obtained a decision on voluntary auction on February 12, 2014.

C. Based on the instant collateral security, the Plaintiff filed an application for voluntary auction with the Gwangju District Court Mapo-Support C with respect to each of the instant real estate, and received a voluntary decision on the commencement of auction on April 4, 2014.

(B) The auction procedure following the decision on voluntary auction of each of the above paragraphs (b) and (c) is called “instant auction procedure.”

In the auction procedure of this case, on October 16, 2014, the defendant asserted that the above court had a claim for construction cost of KRW 74,645,000 regarding the real estate stated in the order of Paragraph (1) among each of the real estate of this case (hereinafter “real estate subject to confirmation of this case”) and submitted the certificate of receipt of lien confirmation lawsuit to the above court.

[Reasons for Recognition] Each entry of Gap evidence Nos. 1 through 9, the purport of the whole pleadings

2. Determination

A. In a passive confirmation lawsuit, if the plaintiff alleged to deny the fact that the cause of the debt occurred by specifying the plaintiff's claim first, the defendant, the creditor, bears the burden of asserting and supporting the fact that the legal relationship exists. As such, in a lawsuit to confirm the existence of the right of retention, the defendant must assert and prove the existence of the subject matter of the right of retention and the related claim.

Supreme Court Decision 201 March 2016