1. The plaintiff's claim is dismissed.

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

1. Basic facts

A. On November 17, 201, the Defendant completed the registration of the establishment of a mortgage (hereinafter “registration of the establishment of a mortgage of this case”) on the land of 731 square meters in Chungcheongnam-gun, Chungcheongnam-do, Chungcheongnam-do (hereinafter “instant real estate”), which was owned by D, the maximum debt amount of KRW 65 million based on the contract to establish a mortgage on the same day.

B. On November 21, 2011, the Plaintiff completed the registration of creation of a mortgage on the instant real estate, which was based on the contract on November 17, 201, including the maximum debt amount of KRW 92 million, the debtor D, the creditor, and the Plaintiff.

C. In the Seosan District Court’s procedure of auction of real estate C (hereinafter “instant auction”), which was implemented on the instant real estate, etc., the instant court distributed KRW 59,847,48 to the Defendant on the date of distribution implemented on September 16, 2015, and KRW 1,537,644 to the Plaintiff, respectively.

[Ground of recognition] Facts without dispute, Gap evidence No. 1, Gap evidence No. 2, purport of the whole pleadings

2. Determination

A. The gist of the Plaintiff’s assertion was that the Defendant’s senior mortgage exists on the instant real estate while entering into a mortgage agreement with D.

In addition, each contract to establish a mortgage between the plaintiff and the defendant was concluded on the same day, and was completed on November 21, 201 only for the plaintiff's establishment registration of a mortgage.

In light of these circumstances, the Defendant should distribute the amount of dividends to the Defendant to the Plaintiff on the ground that the Defendant completed the registration of establishment of the establishment of the instant nearby claims based on false claims, even if there is no claim against D.

B. The burden of proof in a lawsuit of demurrer against distribution is in accordance with the principle of allocation of burden of proof in general civil procedure. Therefore, in a case where the plaintiff asserts that the defendant's claim has not been constituted, the defendant is liable to prove the cause of the claim, and the plaintiff asserts that the claim has been invalidated as a false declaration of agreement or extinguished by repayment.