1. The plaintiff's appeal is dismissed.

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

Purport of claim and appeal

The first instance court.

1. Basic facts

A. On February 19, 2009, the Defendant completed the registration of the establishment of a neighboring mortgage (hereinafter “mortgage of this case”) based on the contract to establish a mortgage on the same day with respect to the land of 2,620 square meters and E, 820 square meters (hereinafter “instant real estate”) owned by the Plaintiff in Chungcheongnam-do, Chungcheongnam-do.

B. On January 27, 2014, the Defendant filed an application for voluntary auction (the same court C) with the Cheongju District Court, and the auction court prepared a distribution schedule that distributes KRW 82,927,397 to the Defendant on the date of distribution open on January 27, 2014, and the Plaintiff raised an objection against the entire amount of distribution to the Defendant.

[Ground of recognition] Facts without dispute, Gap's statements in Gap's 1 to 3, 7, and 8 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. On February 13, 2009, the Plaintiff asserted that the loan amount was KRW 50,000,000 for the Defendant, each of which was written by the loan contract and the certificate, but there was no actual payment from the Defendant. Therefore, there was no secured claim of the instant mortgage.

Therefore, since the auction court's distribution of KRW 82,927,397 to the defendant is illegal, it is necessary to delete the above amount of distribution to the defendant and distribute it to the plaintiff.

B. The Defendant asserted that the Plaintiff borrowed KRW 50,000,000 from the Defendant as the Plaintiff provided a loan contract, loan certificate, receipt, promissory note, or collateral security contract to the Defendant, and issued a certificate of personal seal impression, power of attorney, resident registration certificate, abstract of resident registration, and certificate of registration. The F and G actually received the Plaintiff’s consent or approval for all of the above loan amounts.

Therefore, since the secured claim of the instant right to collateral security exists effectively, the distribution of dividends to the Defendant based on the secured claim is lawful.

3. Determination

A. The burden of proving the grounds for objection against distribution in a lawsuit of demurrer against distribution is also the burden of proof.