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1. Attached Table 2, each of which the Defendant reported the rights in the Suwon District Court, Sung-nam Branch C real estate auction case.
Reasons
1. Basic facts
A. On November 11, 2015, the Asset Management Company filed an application for voluntary auction with the Suwon District Court for each of the real estate listed in the separate sheet No. D owned on November 11, 2015 (hereinafter collectively referred to as “instant real estate”) to Sung-nam Branch C, and received a decision to commence auction on November 12, 2015.
(hereinafter referred to as “instant auction procedure”). B.
The Plaintiff (Appointed Party, hereinafter “Plaintiff”) and Appointed E are the mortgagee of the instant real estate.
C. On July 7, 2016, the Defendant reported a lien of KRW 2,619,921,760 on the instant real estate as secured claim (hereinafter “instant lien”) at the instant auction procedure.
[Ground of recognition] Facts without dispute, entries in Gap evidence 1 to 3 and the purport of the whole pleadings
2. The plaintiff's assertion that the defendant does not have a claim related to relation to the real estate of this case and does not possess the real estate of this case, so there is no lien of this case.
3. Determination
A. In a passive confirmation lawsuit, if the Plaintiff asserted to deny the fact that the cause of debt occurred by specifying the Plaintiff’s claim first, the Defendant, the obligee, bears the responsibility to assert and prove the fact that the legal relationship exists. As such, in a lawsuit seeking confirmation of non-existence of the right of retention, the Defendant should assert and prove the existence of the subject matter of the right of retention and the related claim
(see, e.g., Supreme Court Decision 2013Da99409, Mar. 10, 2016). In light of the above legal principle, according to the evidence Nos. 1 and 2 as to the instant case, it is acknowledged that the Defendant’s representative director F was subject to a disposition of “comforcing suspicion” as to a case subject to obstruction of auction on or around January 2, 2017, and there is no specific circumstance to deem that the Defendant had a claim for construction price with respect to the instant real estate. Thus, the above fact of recognition is alone.