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1. The Defendants’ claims of KRW 384,00,000 as secured claims regarding each real estate listed in the separate sheet are deemed as secured claims.
Reasons
1. Facts of recognition;
A. On April 25, 2014, the Plaintiff completed the registration of creation of a mortgage over KRW 2,574,00,000 with respect to each real estate listed in the separate sheet (hereinafter “instant real estate”) on April 25, 201, when granting a loan to A as security for the loan.
B. As the Plaintiff was unable to receive the above loans, the Plaintiff applied for a voluntary auction of real estate regarding the instant real estate to the Jung-gu District Court B, and the said court rendered a decision of voluntary auction on July 15, 2014, and on the same day, the registration of the decision of voluntary auction of the instant real estate was completed.
C. On January 18, 2015, the Defendants asserted that the instant real estate was a lien holder holding a claim equivalent to KRW 384,00,000 with respect to the said real estate at the above auction procedure, and submitted a lien report on the instant real estate with respect to the said claim as a secured claim.
[Ground of recognition] Unsatisfy, entry of Gap evidence 1 and 2 (including branch numbers for those with additional numbers), the purport of the whole pleadings
2. The assertion and judgment
A. 1) The Plaintiff asserts that the Defendants did not possess the above real estate prior to the entry registration of the order to commence auction on the instant real estate, and that the claims asserted by the Defendants were generated after the entry registration thereof. As to this, the Defendants asserted that the Defendants are not the lien holder with respect to the instant real estate. 2) The Defendants asserted that the Defendants were the lawful lien holder with respect to the instant real estate since they occupied the said real estate with a claim for construction cost against A prior to the entry registration of the order to commence auction on the instant real estate.
B. In a lawsuit seeking passive confirmation, if the Plaintiff asserts that the cause of the right, etc. is denied by specifying the right or legal relationship which is the subject matter of a lawsuit, the Defendants are entitled to assert and prove the cause of the right, etc. (see Supreme Court Decision 97Da45259, Mar. 13, 1998).