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1. It is confirmed that the defendant's lien does not exist as to each real estate listed in the separate sheet.
2...
Reasons
1. Basic facts
A. Each of the real estate listed in the separate sheet (hereinafter “instant real estate”) was owned by the non-party Yong-gu Agricultural Partnership. The Hanyang-gun Forestry Cooperatives, which was the mortgagee of the right to collateral security, filed an application for voluntary auction on the instant real estate to the Cheongju District Court-Support B, and received the decision to commence voluntary auction from the above court on February 12, 2014.
B. On July 17, 2014, the Defendant asserted that there was KRW 92,746,00 of the construction price claim regarding the instant real estate in the said voluntary auction procedure, and reported the right based on the right of retention to the auction court.
C. Meanwhile, the Plaintiff acquired ownership on September 25, 2014 by winning the instant real estate at the said voluntary auction procedure.
[Ground of recognition] Facts without dispute, entry of Gap evidence 1 and 2 (including additional number), the purport of the whole pleadings
2. Judgment on the parties' arguments
A. The Plaintiff’s claim for construction price does not exist, and the Defendant does not occupy the real estate of this case.
B. The construction was suspended while the Defendant was contracted with the “Civil Construction Works for the C-Family Housing” on the instant real estate from the Agricultural Cooperative for the Defendant’s argument. As such, the unpaid construction cost is KRW 92,746,00 among the construction cost incurred up to that time, and the land in this case is occupied by asserting a lien from December 2013.
C. In a lawsuit for passive confirmation, where the Plaintiff first denies the cause of the right, the Defendant, the right holder, bears the responsibility to assert and prove the fact of the requirement of legal relationship (see, e.g., Supreme Court Decision 97Da45259, Mar. 13, 1998). Thus, in this case, even in the instant case, the Defendant’s assertion that the lien holder is the lien holder, must prove the existence of the secured claim regarding the instant real estate and the possession thereof.
According to the records of evidence No. 5, Cheongju District Court on the real estate of this case.