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1. Revocation of the first instance judgment.
2. As to the case of an application for a voluntary auction of B real estate with the stay of the Daegu District Court.
Reasons
1. The reasoning for this part of the judgment of the court is the same as that of the corresponding part of the judgment of the court of first instance, and thus, this part is cited by the main sentence of Article 420 of the Civil Procedure Act
2. The assertion and judgment
A. The Plaintiff’s assertion did not have any secured claim, and the statute of limitations expired even if he exists, even if there was any novel.
Therefore, the distribution amount of the Defendant’s dividends based on the non-existence or extinguished collateral should be deleted and distributed to the Plaintiff.
B. Determination 1) The burden of proving the grounds for objection to a distribution in a lawsuit of demurrer to a distribution is in accordance with the principle of allocation of the burden of proof in a general civil lawsuit. In the event that the plaintiff asserts that the defendant's claim has not been constituted, the defendant is liable to prove the facts of the cause of the claim, and where the plaintiff asserts that the claim has become null and void as a false agreement or has become extinguished by repayment, the plaintiff is liable to prove the facts constituting the grounds for invalidation or extinguishment (see, e.g., Supreme Court Decision 2005Da39617, Jul. 12, 2007). In addition, the right to collateral security is established by reserving the confirmation of the obligation, and it is established for the purpose of securing several unspecified claims arising from the continuous transaction at a certain limit in the future settlement period. Thus, separate from the act of creation of the right to collateral security, there is a legal act establishing the secured claim of the right to collateral security separately from the act of creation of the right to collateral security. In light of the legal principles as to whether there was a legal act establishing the secured claim at the time of collateral security.