유치권 부존재 확인
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
Purport of claim and appeal
Judgment of the first instance.
1. The reasons for this part of the facts are as follows: (a) in addition to adding Gap evidence Nos. 21-1, 2, and 24 to the grounds for recognition, the part of "1. Recognizing facts" is as stated in the reasoning of the first instance judgment; and (b) in accordance with the main sentence of Article 420 of the Civil Procedure Act, the corresponding part is cited.
2. Summary of the plaintiff's assertion
A. Claim 1 relating to the existence of a lien / The defendant corporation E (hereinafter referred to as "E")
(2) The Defendant and C did not already deliver the instant vessel to E and do not occupy the instant vessel. The instant repair cost claim is KRW 90,000.00.
3 Inasmuch as there is no possession relationship between the Defendant and C, it cannot be deemed that the Defendant is an indirect possession of the instant vessel via C.
Therefore, the defendant did not acquire the right of retention.
B. Even if the Defendant asserted that the right of retention was extinguished, the Plaintiff acquired the instant vessel at the auction procedure conducted by the Defendant’s request for auction, and thus, the Defendant’s right of retention was extinguished due to this reason.
3. Determination
A. 1) In a passive lawsuit seeking the burden of proof of the existence of a lien, if the Plaintiff asserts the fact that the cause of the claim occurred by specifying the first claim in advance, the Defendant, the obligee, bears the burden of asserting and proving the fact that the legal relationship exists. As such, even in this case, which is a lawsuit seeking the non-existence of a lien, the Defendant, who asserts the existence of a lien, shall assert and prove the existence of a claim related to the subject-matter of the lien, and the possession of the subject-matter thereof (see, e.g., Supreme Court Decision 2013Da9409, Mar. 10, 2016). Therefore, in this case, the Defendant who asserts the existence of a lien in this case, has a claim with respect to the ship of this case (i) the fact that the Defendant, who