1. On February 13, 2017, the Defendant is on the 2,212 square meters in Jung-gu Incheon District Court B real estate auction case, Jung-gu, Incheon.

1. Basic facts

A. On January 29, 2010, the Plaintiff completed the registration of the establishment of a mortgage on the land of KRW 672,00,000 with respect to the land of Jung-gu Incheon Metropolitan City, which was owned by D (hereinafter “instant land”) and KRW 2,212 square meters (hereinafter “instant land”).

B. D delayed the repayment of the secured obligation under the foregoing right to collateral security, the Plaintiff applied for a voluntary auction to the Incheon District Court B, and on November 24, 2016, registered the entry of the decision to commence auction on the instant land.

(hereinafter referred to as “instant auction”) c. of the auction commenced as above.

On February 13, 2017, the Defendant filed a lien report at the instant auction procedure, and claimed that the secured obligation was KRW 160,020,000 as construction cost for the instant land.

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 4, evidence 6, evidence 7, each entry of evidence 4, purport of whole pleadings]

2. Determination

A. In a passive confirmation lawsuit, if the plaintiff alleged that the cause of the right is denied by specifying the plaintiff's claim first, the defendant bears the responsibility to prove and prove the requisite facts of the legal relationship (see, e.g., Supreme Court Decision 97Da45259, Mar. 13, 1998). Thus, even in a lawsuit seeking confirmation of existence of the right, the person who claims the right of retention should prove the requisite facts of its establishment and existence.

(See Supreme Court Decision 2013Da84971 Decided January 29, 2015, etc.). B.

The defendant asserts that the land in this case was occupied by installing containers and fences from December 201 in order to construct the land in this case according to the construction contract with D and to recover the claim for the construction cost.

In full view of the overall purport of the pleadings in the descriptions and videos of the evidence Nos. 1 to 3, 2-1 to 4, 8-1, and 2 of the evidence Nos. 1 to 1 to 3, 2, the Defendant divided the instant land from the land before the division between D and D on June 30, 201 (the instant land was divided on January 22, 2010).