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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. On September 7, 2010, the Plaintiff lent KRW 119,000,00 to Nonparty B. On the same day, the Plaintiff completed the registration of the establishment of a neighboring mortgage of KRW 154,70,000 with respect to the instant real estate owned by B (hereinafter “instant secured mortgage”).
B. On March 14, 2013, the Defendant entered into a lease agreement with B under which the instant real estate was leased by setting the lease deposit amount of KRW 25,00,000,00, and the period from March 29, 2013 to March 28, 2015 (hereinafter “instant lease agreement”), and paid KRW 22,50,000 as the down payment on March 14, 2013, and KRW 22,50,000 as the remainder on March 29, 2013, and completed the move-in report as the instant real estate on March 19, 2013 after obtaining the fixed date on the said lease agreement and completing the move-in report on April 3, 2013.
C. The Plaintiff filed an application for voluntary auction with the Busan District Court for the instant real estate based on the instant collateral security upon the delay in the debt of the said loan, and on May 9, 2013, the voluntary auction procedure was commenced regarding the instant real estate.
In the above voluntary auction procedure, the Plaintiff submitted a claim statement of KRW 137,81,500, including the principal amount of KRW 119,000,000 and interest of KRW 18,811,500, and the Defendant, as a lessee under the lease agreement of this case, asserted that there was a claim for refund of lease deposit of KRW 25,00,000,000, and filed a report on the right and demand for distribution of the right. The auction court, on December 27, 2013, prepared a distribution schedule (hereinafter “instant distribution schedule”) stating that the Plaintiff, a small lessee, who is a collective security right, distributes the amount of KRW 102,36,137 to the Plaintiff, who is a collective security right, in the order of KRW 126,890,00,000 and KRW 222,30,000,000, and filed a lawsuit of demurrer against the distribution of the instant amount.
E. At the time of entering into the instant gift contract, B was insolvent in which the small property exceeds active property. The market price as of May 16, 2013 is KRW 170,000,000.