1. Claim for the construction cost of KRW 392,595,100 as the secured claim for each real property listed in the separate sheet.

1. Basic facts

A. On April 12, 2016, the Industrial Bank of Korea rendered a voluntary decision on the commencement of auction (B) upon the application of the Industrial Bank of Korea on the respective real estate listed in the separate sheet owned by Oito Pest Co., Ltd.

B. On January 20, 2017, the Defendant reported the right of retention on the ground that there was a claim for construction price of KRW 392,595,100 regarding each of the above real estate at the above auction procedure.

C. The plaintiff was the transferee of the above collateral security with the Industrial Bank of Korea.

[Ground for Recognition: Facts without dispute, Gap 1, 2, 3 (including ad hoc number), the purport of the whole pleadings]

2. Determination

A. In a passive confirmation lawsuit, if the Plaintiff asserts that the cause of debt arises by specifying the Plaintiff’s claim first, the Defendant, the obligee, bears the burden of assertion and proof as to the facts constituting the requisite of the right relationship. 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, which is the requirement of the right of retention (see, e.g., Supreme Court Decision 2013Da9409, Mar. 10, 2016). The evidence submitted by the Defendant alone entered into a construction contract between the Defendant and Ou Pus

It is insufficient to recognize that the Defendant actually performed the construction work, and there is no other evidence to acknowledge it.

B. Even if the Defendant actually carried out construction works on each of the above real estate, the Defendant had a claim for construction cost.

Even if the evidence submitted by the defendant alone is insufficient to recognize that the defendant continuously occupied each of the above immovables prior to April 12, 2016, which became effective due to the completion of the entry registration of the decision to commence the auction on each of the above immovables, and there is no other evidence to acknowledge this differently, the defendant cannot oppose the plaintiff, who is the right of retention, on the ground of the right of retention

(see, e.g., Supreme Court Decision 2006Da22050, Aug. 25, 2006) rather, according to the respective descriptions of evidence A16 and 17, in the auction procedure of this case.