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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
Basic Facts
A. On October 14, 2016, with respect to the instant building owned by C, the right to collateral security was created on October 14, 2016.
B. On March 31, 2017, the Plaintiff concluded a lease agreement on the instant building with C, and operated the telecom with delivery of the instant building.
At the same time when concluding a lease agreement, the Plaintiff also set up a lease on a deposit basis of KRW 150 million for the instant building.
Since then, the Plaintiff filed a lawsuit against C seeking the return of the lease deposit for the instant building, and on May 31, 2018, the judgment was rendered to the effect that “C shall pay to the Plaintiff KRW 86 million and any delay delay damages therefrom” (Seoul District Court Decision 2018Gadan51667). The said judgment became final and conclusive around that time.
C. After that, at the Defendant’s request, the Defendant, who is the right to collateral security, commenced the auction procedure of real estate regarding the instant building.
(Seoul District Court D, Hongsung Branch D, hereinafter “instant auction procedure”). In the instant auction procedure, the Plaintiff reported the lien three times in March, August, and October, 2018.
The contents of the final lien report were that the Plaintiff has commercial lien with the amount of KRW 16,738,50,000, which was invested in the repair of the building of this case as the secured claim, with the civil lien and KRW 86,000,000,000,000,000,000,000 won as the secured claim.
In the auction procedure of this case, the Defendant received the decision to permit the sale and paid the price in full, and acquired the ownership of the building of this case.
The defendant applied for an order to deliver real estate against the plaintiff, and the order to deliver real estate was issued on August 30, 2019.
(S) On October 1, 2019, the Plaintiff filed an immediate appeal against this, but the immediate appeal was dismissed on October 1, 2019 ( Daejeon District Court 2019Ra286), and the above order of delivery of real estate became final and conclusive around that time.
[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 5, 7, 10.