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1. Of the distribution schedule prepared by the said court on June 11, 2015 in the Suwon District Court’s Pyeongtaek Real Estate Auction case D, the said court.
Reasons
1. Basic facts
A. On January 14, 2009, the registration of creation of a neighboring mortgage (hereinafter “registration of creation of a neighboring mortgage”) by the obligor, the Plaintiff, the mortgagee, the mortgagee F, and the Defendants was completed with respect to the 2,000,000,000 won with respect to the 877m2 and 68.62m2m2 (hereinafter “instant site and building”).
B. Meanwhile, on the other hand, on December 19, 2014, the Suwon District Court rendered a decision to commence the sale of real estate D with respect to the instant site and buildings (hereinafter “instant auction procedure”). On June 11, 2015, on the date of distribution of the instant auction procedure, on June 11, 2015, the said court drafted a distribution schedule with the content of allocating KRW 45,548,231 (the amount of 4th, 6.07%) to Defendant B; KRW 30,365,487 (the amount of 4th, 6.07%) to Defendant C; and KRW 0 to the Plaintiff, the debtor and owner (hereinafter “instant distribution schedule”).
C. On the date of distribution of this case, the Plaintiff raised an objection to the entire amount distributed to the Defendants, and filed a lawsuit of demurrer against the distribution of this case.
[Ground of Recognition] Facts without dispute between the parties, entry of Gap evidence 1 to 3 (including a provisional number; hereinafter the same shall apply) and the purport of the whole pleadings
2. Determination
A. The burden of proof as to the grounds for objection to a distribution in a lawsuit of demurrer is in accordance with the principle of distribution of the burden of proof in general civil procedure. In the event that the plaintiff claims that the defendant's claims have not been constituted, the defendant is liable to prove the facts of the cause of the claim, and where the plaintiff claims that the claims were invalid or extinguished due to false declaration of agreement, the plaintiff is liable
(See Supreme Court Decision 2005Da39617 Decided July 12, 2007, etc.). B.
On the instant case, the Plaintiff argued that there was no secured debt at the time of registering the establishment of the instant neighboring mortgage.