1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Basic facts

A. On November 15, 2010, the Plaintiff entered into a contract to establish a mortgage (hereinafter “mortgage”) with the debtor C and the maximum debt amount of KRW 91,00,000 with respect to the instant real estate, and completed the registration of establishment of a mortgage near the same day.

B. After October 2013, the Plaintiff filed an application for a voluntary auction of real estate (hereinafter “instant auction”) on the instant real estate with this court B based on the foregoing right to collateral security (hereinafter “instant auction”). On November 6, 2013, the instant court rendered a voluntary decision to commence auction on November 6, 2013.

On January 15, 2014, the Defendant asserted on January 22, 2013, the execution court concluded a lease contract of KRW 16,000,000 with respect to the instant real estate (hereinafter “instant lease contract”) with C on January 22, 2013, and filed a report on the right and demand for distribution.

E. On the date of distribution implemented on December 4, 2014, the instant court prepared a distribution schedule with the content that distributes KRW 16,000,000 to the Defendant, who demanded a distribution as a small lessee on the date of distribution, and that distributes KRW 29,089,959 to the Plaintiff, a mortgagee, in the second priority order (hereinafter “instant distribution schedule”).

F. On the aforementioned date of distribution, the Plaintiff raised an objection to the entire amount of distribution to the Defendant, and thereafter filed the instant lawsuit on December 11, 2014, within one week thereafter.

【Fact-finding without a dispute over the ground for recognition】 Each entry of Gap 1 through 5 (including branch numbers for those with additional numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. The summary of the Plaintiff’s assertion 1) The Defendant is the most lessee who is not a party to the instant lease contract for residential purpose, but merely received the move-in report and the fixed date in a formal manner to receive preferential dividend as small-sum lessee. Therefore, the amount of dividend to the Defendant ought to be distributed to the Plaintiff. 2) At the time of the conclusion of the instant lease contract, C, the debtor of the instant lease, was in excess of the obligation.