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1. It is confirmed that the Defendants’ lien does not exist with respect to each real estate listed in the separate sheet.
2...
Reasons
1. Basic facts
A. On September 8, 2008, the Plaintiff extended KRW 500,000,00 to C on September 8, 2008, and completed the registration of the establishment of a mortgage on the real estate listed in the separate sheet owned by C, the husband of C, in order to secure the above loan obligation (hereinafter “instant real estate”).
B. The Plaintiff filed an application for voluntary auction of the instant real estate to Cheongju District Court Assistance E as the Plaintiff failed to repay the above loans, and the said court rendered a decision to commence the auction on December 14, 2012.
C. On February 19, 2013, Defendant B reported a right as a lien holder at the above auction procedure (hereinafter “instant auction procedure”) on March 5, 2013.
[Ground of recognition] Unsatisfy, Gap evidence Nos. 1-3, 5, 7-14 (including additional number), the purport of the whole pleadings
2. The assertion and judgment
A. The Plaintiff asserted that there is no claim for construction price as alleged by the Defendants, and that there is no right of retention of the Defendants as to the instant real estate since there is no fact that the Defendants actually occupied the instant real estate.
B. 1) In a passive confirmation lawsuit, if the plaintiff alleged that the facts of the cause of the right are denied by specifying the plaintiff's claim first, the defendant is liable to prove and prove the facts of the requisite legal relationship (see Supreme Court Decision 97Da45259, Mar. 13, 1998). Since the plaintiff asserted that the cause of the right is denied in this case, the defendants are liable to prove and prove the occurrence of the claim, which is the requirement of the lien, and possession of the object, etc., the defendants are liable to prove and prove the fact of the requirement of the lien. 2)
3. Defendant B entered into a contract for civil and landscaping construction with D with respect to the instant real estate and has a claim for construction cost of KRW 136,500,000.