1. The plaintiff's appeal is all 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 July 15, 2014, the fourth floor building located E (hereinafter “instant building”) is owned by F. F entered into a lease agreement with Defendant A on February 19, 2013 with respect to subparagraph 101 among the instant building; Defendant B and Defendant C on July 15, 2014 for subparagraph 102, and Defendant C on February 19, 2013.

B. On November 11, 2014, in relation to the instant building, the procedure of voluntary auction of real estate was commenced as Gwangju District Court Mapo-gu D on November 11, 2014, and on December 29, 2015, the Defendants were distributed in 12,00,000 won for each of the reasons that they are the top priority tenant, and the Plaintiff was distributed in 309,856,393 won.

C. Accordingly, the Plaintiff filed the instant lawsuit on January 4, 2016 against the Defendants on the date of distribution, after raising an objection to the distribution.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, and 8 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. The Defendants alleged by the Plaintiff are the most lessee who entered into a lease agreement to obtain unjust benefits by abusing the Housing Lease Protection Act that recognizes preferential payment right if they satisfy the requirements for setting up against the Plaintiff prior to the commencement of auction. There was no fact that they did not actually reside in the instant building or paid the lease deposit actually.

Therefore, since the defendants are not small tenants as stipulated in the Housing Lease Protection Act, the dividend table under the auction of this case should be corrected to increase the amount of dividend to the plaintiff to the extent of the amount by eliminating the dividend amount of KRW 12,000,000 against the defendants.

3. Determination

A. In a lawsuit of demurrer against distribution, the Plaintiff does not assert or prove the facts constituting the grounds for objection against distribution. As such, the obligee who filed an objection against distribution by asserting that the other party’s claim is disguised, bears the burden of proof as to such claim.

(see, e.g., Supreme Court Decision 97Da32178, Nov. 14, 1997). Also, in order to establish a false declaration of agreement, the expression of intent is intended.