1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

Purport of claim and appeal

The judgment of the court of first instance.

1. Basic facts

A. The Plaintiff applied for a compulsory auction for real estate by the head of the Gwangju District Court E with respect to F-owned real estate (hereinafter “instant real estate”).

B. On February 18, 2019, a court of execution prepared a distribution schedule by allocating the amount of KRW 106,536,92 to be actually distributed on the date of distribution to L Union, a mortgagee, KRW 58,718,882, and KRW 31,838,425 to the Plaintiff, an applicant creditor, and KRW 7,375,239, and KRW 8,604,446 to the Defendant, a person having the right to provisional seizure, who is a person having the right to provisional seizure, respectively (hereinafter “instant distribution schedule”). The Plaintiff raised an objection against the total amount of dividends to the Defendant and the co-defendant C in the first instance trial.

C. On February 22, 2019, the Plaintiff filed a lawsuit of demurrer against distribution of the instant case.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 6 (including branch numbers of evidence available; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiff asserts that the loan claim of KRW 35,00,000 against F claimed by the defendant at the time of provisional seizure is false credit. The defendant, on July 27, 2017, set the interest rate of KRW 1.5% per month to F on July 27, 2017, lent KRW 34,50,000 calculated by deducting KRW 50,000 from the prior interest rate of KRW 50,000,00,000, while claiming that the above claim is true credit.

3. Determination

A. The burden of proving the grounds for objection to a distribution in a lawsuit of demurrer against a distribution also complies with the principle of allocation of the burden of proof in general civil procedure. In the event that the plaintiff asserts that the defendant's claim has not been constituted, the defendant is liable to prove the facts of the cause of the claim, and in the event that the plaintiff claims that the claim has been invalidated as a false declaration of agreement or extinguished by repayment, the plaintiff is liable to prove the facts constituting the grounds for disability or extinguishment (see, e.g., Supreme Court Decision 2005Da39617, Jul. 12, 2007)