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(영문) 서울고등법원 2016.11.18 2015나31171

유치권 부존재학인

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1. The part of the judgment of the court of first instance against the plaintiff shall be revoked.

2. As to the building indicated in the attached list, the defendant.

Reasons

1. Basic facts

A. As to the building listed in the [Attachment List D] owned on April 6, 2009 (hereinafter “instant building”), the Plaintiff is a mortgagee who completed the registration of creation of a mortgage (Seoul Western District Court No. 12274, Apr. 6, 2009) with the debtor’s creation of a mortgage (Seoul Western District Court No. 12274, Apr. 6, 2009) with the maximum debt amount of KRW 780,000 with respect to the debtor, and the debtor C and the debtor’s maximum debt amount of KRW 1,209,000 with respect to the registration of creation of a mortgage (Seoul Western District Court No. 1278, Apr. 6, 2009).

B. On April 6, 2009, C drafted “Certificate of Lease (Evidence A No. 4-1)” with the content that the Plaintiff did not have any lessee except F (No. 16, 2006 on the date of the lease contract, No. 50,000,000 on the instant building).

C. On July 24, 2009, the Defendant transferred KRW 30,000,000 to L’s account, a construction business operator, and KRW 19,00,000 to L’s account on October 1, 2009, respectively.

On December 27, 2011, with respect to the instant building, the voluntary auction procedure commenced upon the Plaintiff’s request, but was completed on September 5, 2012 by the Plaintiff’s withdrawal.

(C) On September 14, 2008, 2008, September 14, 2008, 2009, the Defendant registered a fixed date as of January 11, 2012 with the name of “I” as to the first floor of the instant building on the same day. After the date, on January 14, 2013, the Defendant again started the auction procedure in accordance with the Plaintiff’s request on January 14, 2013 (hereinafter “the second auction procedure”). On September 14, 2013, on September 2008, the period of lease from September 14, 2008 to September 13, 209.

H. Meanwhile, from October 1, 2009 to the first floor of the instant building, the Defendant himself/herself is in the front priority parking zone of the first floor.