유치권 부존재 확인
1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
Purport of claim and appeal
1...
1. The reasoning of the judgment of the court of first instance citing the reasoning of the judgment is as stated in the reasoning of the judgment of the court of first instance, except where the defendant makes an additional or supplementary judgment as to the part asserted as the grounds for appeal as follows. Thus, it is acceptable to accept it as it is in accordance
2. Additional or supplementary judgment
A. As the summary of the grounds for appeal did not pay the construction cost to the Defendant, the Defendant, around September 2014, prior to the registration of the auction and admission to the instant land and building, took one’s own goods from among the instant buildings used as the hospital, and exercised the right of retention by the method of managing the hospital, which was used as the hospital, and the Defendant’s exercise of the right of retention, and (B), and operated the hospital with the Defendant’s consent. Accordingly, the de facto control over the instant building was already transferred to the Defendant around that time.
B. A person who acquired a lien subsequent to the registration of the decision on commencing auction on any real estate to be determined cannot claim his/her lien in the auction procedure, and in a lawsuit to confirm the existence of the lien, the person who claimed the lien must assert and prove the fact of the requirements for its establishment and existence.
In addition, the requirements for establishment of a lien under Article 320 of the Civil Act and possession, which is the requirements for existence of a lien, refers to the objective relationship that appears to belong to the factual control of the person in terms of social norms. At this time, factual control is not necessarily limited to physical and practical control, but should be judged in conformity with the concept of society in consideration of the time and spatial relationship with the object and the principal right relationship with the object, the possibility of exclusion from other people's control, etc. However, in order to be deemed to have an objective relationship that belongs to such factual control, at least to exclude interference from others (see, e.g., Supreme Court Decision 2013Da84971, Jan. 29, 2015).