유치권 부존재 확인
1. It is confirmed that the defendant's lien does not exist as to each real estate listed in the separate sheet.
2...
1. Facts of recognition;
A. On March 27, 2012, the registration of ownership transfer was completed with respect to each real estate listed in the separate sheet (hereinafter “each of the instant real estate”). On June 28, 2016, the registration of ownership transfer was completed with respect to each of the instant real estate as indicated in the separate sheet (hereinafter “instant real estate”). On June 28, 2016, the registration of the establishment of a neighboring mortgage was completed with the maximum debt amount of KRW 34
B. On January 26, 2018, the Plaintiff filed an application for the commencement of voluntary auction to the District Court D with respect to each of the instant real estate, and the decision on commencement of auction was made on January 26, 2018, and the entry registration of the decision on commencement of voluntary auction was
(hereinafter “instant auction procedure”). C.
In the instant auction procedure, on April 6, 2018, the Defendant reported the lien with the claim for construction cost of KRW 54,563,800 against C as the secured claim.
[Ground of recognition] Unsatisfy, Gap evidence Nos. 1-1, 2, 3, and 2-2, the purport of the whole pleadings
2. Summary of the parties' arguments
A. Although the Plaintiff did not have a lien on each of the instant real property, the Defendant asserted that the right of retention was reported in the instant auction procedure, and sought confirmation on the existence of the right of retention against the Defendant.
B. The Defendant’s assertion that: (a) around October 2014, the construction work was contracted by C with respect to each of the instant real estate; (b) however, the construction work was not paid; and (c) since October 2017, the Defendant occupied each of the instant real estate and exercised a lien. The Plaintiff’s claim in this case is without merit.
3. Determination
A. In a lawsuit seeking passive confirmation of relevant legal principles, if the Plaintiff alleged to deny the fact that the cause of debt occurred by specifying the Plaintiff’s claim first, the Defendant, the obligee, bears the responsibility to assert and prove the fact that the legal relationship exists. As such, in a lawsuit seeking confirmation of existence of the right of retention, the Defendant must assert and prove the existence of a claim that is the requirement of the right of retention, and the possession of an object, and the Defendant must assert and prove the existence of a claim