유치권부존재확인
1. All appeals by the Defendants are dismissed.
2. The costs of appeal are assessed against the Defendants.
Purport of claim and appeal
1.
1. The reasons for the court’s explanation of this case are as follows, except where the Defendants added the judgment as to the repeated argument made in the trial of the court of first instance, and therefore, it is identical to the part of the reasons for the judgment of the court of first instance pursuant to the main sentence of Article 420 of the Civil Procedure Act.
2. Additional determination
A. The summary of the Defendants’ assertion: F entered into each contract on the installation of the five-story exclusive elevator among Defendant B and the instant building in the name of E, his spouse, with respect to the interior works of Defendant A and the instant building, with respect to the installation of the five-story exclusive elevator among the instant buildings, Defendant C and the instant building, respectively.
The Defendants completed all of the construction works under each of the above contracts, but occupied the instant building on the grounds that Defendant A, Defendant B, and Defendant C did not receive the construction cost of KRW 500 million from F, and Defendant C did not receive the construction cost of KRW 300 million.
Therefore, there is a lien that covers the Defendants’ claim for the construction cost of the instant building as the secured claim.
B. Determination 1) Possession is a requirement for establishment of a lien and is a requirement for existence (Article 320(1) and Article 328 of the Civil Act). In a lawsuit for passive confirmation, if the Plaintiff asserts that the cause of the right is denied first, the Defendant, the right holder, is liable to prove and prove the facts constituting a requirement for establishment of a lien (see, e.g., Supreme Court Decision 97Da45259, Mar. 13, 1998). The possession of the lien holder, which is a requirement for establishment of a lien and the requirement for existence, is neither direct nor indirect possession, but the right of indirect enforcement of the obligor by attracting the object. However, in light of the fact that a direct occupant is the debtor, it does not constitute possession as a requirement for a lien (see, e.g., Supreme Court Decision 2007Da27236, Apr. 11, 2008).