1. Claim for construction cost of KRW 60,000,000 for each real property listed in the separate sheet shall be the secured claim.

Basic Facts

On December 16, 2010, in order to secure a loan claim of KRW 355,000,000 against C, the Plaintiff registered the establishment of a neighboring mortgage on each real estate listed in the separate sheet owned by D (hereinafter “instant land”) with the maximum debt amount of KRW 460,00,000,000.

On August 8, 2013, upon the Plaintiff’s application, the registration was completed on the same day as the auction procedure for exercising the right to collateral (Secheon Branch E, Daejeon District Court E, hereinafter “instant auction”).

On December 4, 2014, the Defendants reported the right of retention by asserting that they occupy the instant land by setting the claim for construction cost of KRW 60,000,000 against D as the secured claim at the auction of this case.

【In the absence of dispute, the Plaintiff Defendants asserted that there was no lien on the land of this case since they did not occupy the land of this case. The claims asserted by the Defendants are merely claims arising in relation to the neighboring real estate of this case. The secured claim of this case cannot be the secured claim of this case.

The Defendants agreed to perform the construction work for housing site preparation with D, which is the owner of the instant land, to develop the instant land as the site for electric source, and to receive KRW 60,000,000 from D as the construction cost. As such, there exists a claim for the construction cost for the instant land. In order to secure the said claim, there is a lien under Article 320 of the Civil Act, since the Defendants occupied the instant land while operating the sales office in the vicinity to secure the said claim.

Judgment

In a passive confirmation lawsuit, if the plaintiff first denies the cause of the right, the defendant who is the right holder is responsible for proving the fact of the legal relationship.