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1. The defendant's claim for the construction cost of KRW 30,000,000 as the secured claim regarding the real estate stated in the attached list.
Reasons
1. Basic facts
A. On December 3, 2013, with respect to the real estate listed in the separate sheet owned by C (hereinafter “instant real estate”), the auction procedure (hereinafter “instant auction procedure”) was conducted on December 3, 2013 by the Suwon District Court D, and the same court E on February 10, 2014.
B. On March 21, 2014, the Defendant filed a lien on the instant auction procedure, asserting that he/she had a claim equivalent to KRW 30,000,000 against C, and filed a lien as the secured claim.
C. Meanwhile, the Plaintiff acquired the ownership of the instant real estate by completely paying the sales price on July 28, 2015 upon receiving a successful bid of the instant real estate.
[Ground of recognition] Facts without dispute, Gap evidence 1-1-2, Gap evidence 2-2, the purport of the whole pleadings
2. The parties' assertion
A. The plaintiff's assertion that there is no claim for the construction price against C, and the defendant does not occupy the real estate at present, and even if there is an actual right of retention for the defendant, the defendant appears to have commenced possession after the date on which the decision of voluntary commencement of auction was entered, which cannot be asserted against the plaintiff, who is the successful bidder, where the defendant acquired a right of retention after the seizure became effective.
B. The Defendant’s assertion not only has a claim for the construction cost against C by executing the housing construction of the instant real estate, but also has been indirectly occupied or indirectly occupied through direct possession or F by installing a truck and container container on the instant real estate prior to the date of the decision to commence the auction. As such, the Defendant’s lien exists.
3. In the lawsuit of passive confirmation like this case, if the plaintiff asserted to deny the fact that the cause of the right occurred by specifying the plaintiff's claim first in advance, the defendant who is the right holder is liable to assert and prove the fact that the right holder is the requirement of the right relationship. Thus, Supreme Court Decision 97Da45259 Decided March 13, 199