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1. It is confirmed that the defendant's lien does not exist as to each real estate listed in the separate sheet.
2...
Reasons
1. The facts under the basis of facts may be found, either in dispute between the parties or in the entries in Gap evidence Nos. 1, 2, 3, and 7 (including branch numbers if there are serial numbers; hereinafter the same shall apply), together with the whole purport of the pleadings. A.
The Plaintiff is a company that takes over the right to collateral security and secured claim on July 2, 2015, each of the real estate listed in the separate sheet (hereinafter “each of the instant real estate”) from the new bank, the mortgagee of the right to collateral security and secured claim on each of the real estate listed in the separate sheet, and the Defendant reported the right to collateral in the above auction case.
B. On May 19, 2015, the Defendant asserted that the interior works of the instant building that were contracted by C, the owner of each of the instant real estate, had the claim for construction cost of KRW 656,30,000, and reported the lien to the said auction court.
2. The plaintiff asserts that the defendant reported the right of retention in the above auction case, but the defendant did not actually possess each of the real estate of this case, and that the right of retention is nonexistent.
On the other hand, in a lawsuit seeking confirmation of non-existence of the right as in the instant case, if the Plaintiff asserted to deny the fact that the cause of the right occurred by specifying the first claim, then the Defendant, who alleged to be the right holder, bears the burden of asserting and proving the facts constituting the requisite of the right relationship (see, e.g., Supreme Court Decision 97Da45259, Mar. 13, 1998). As such, the Defendant, who claimed to be the lien holder of each of the instant real estate, is liable to prove the existence of the right, in particular, as to his possession, and the Defendant has failed to prove the fact
Rather, the following circumstances, such as Gap evidence Nos. 4, 5, and 6, can be admitted to show the overall purport of the pleadings, namely, related auction cases.