1. The plaintiff's claim is dismissed.

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

1. Basic facts

A. On September 12, 1997, Daewoo Electronic Co., Ltd. (hereinafter “Treatment Electronic Co., Ltd”) filed a lawsuit against C et al. against the Seoul Central District Court 97Gahap39310 Goods Purchase Claim and sentenced on September 12, 1997 that “C shall pay to the Treatment Paneler 197,190,000 won and the amount equivalent to 25% per annum from October 1, 1996 to the full payment.” The above judgment was finalized on October 14, 1997.

B. On April 25, 1998, the Defendant completed the registration of creation of a neighboring mortgage (hereinafter “registration of creation of a neighboring mortgage”) against the maximum debt amount of KRW 30 million, the debtor C, and the mortgagee as the defendant on April 25, 1998, with respect to the 129 square meters (hereinafter “instant real estate”).

C. The Plaintiff received a claim based on the judgment of the Seoul Central District Court 97Gahap39310, and applied for a compulsory auction of the instant real estate owned by Suwon District Court B with respect to the instant real estate. On January 19, 2016, the auction court prepared a distribution schedule with the content of allocating KRW 30,000,000 to the Defendant, who is the mortgagee of the instant real estate, and KRW 38,618,91 to the Plaintiff, the applicant creditor, respectively.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, and 4, the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. Since the registration of establishment of a new mortgage of the Plaintiff’s assertion is invalid as if the Defendant conspired with C and made the most fraudulent debt exists, it is necessary to revise the distribution schedule as stated in the purport of the claim.

B. The judgment of the court below is just based on the following facts: (a) the registration of establishment of a neighboring mortgage of the instant case was null and void as it was based on a false declaration of intent in collusion with the Defendant and C; and (b) the registration of establishment of a neighboring mortgage of the instant case was completed after the final and conclusive judgment of Daewoo Electronic; and (c) the Defendant did not institute a lawsuit on the merits even after the provisional attachment of the instant