유치권부존재확인의 소
1. It is confirmed that the defendant's lien does not exist with respect to the forest B 12,181m2 in Ulsan-gu, Ulsan-gu;
2...
1. In the auction procedure at the instant court C voluntary auction procedure (hereinafter “instant auction procedure”) pertaining to 12,181 square meters of forest land B in Ulsan-gu, Ulsan-gu, Ulsan-gu (hereinafter “instant land”), the Plaintiff paid the proceeds from the sale after receiving a successful bid for the instant land on February 27, 2015, and completed the registration of ownership transfer on April 9, 2015.
In the auction procedure of this case, the Defendant reported the lien with regard to the claim for construction cost of the land of this case as the secured claim.
[Reasons for Recognition] Unsatisfy, Gap 1 and 2 evidence, the purport of the whole pleadings
2. The parties' assertion
A. In the auction procedure of this case, the plaintiff asserted that the right of retention was reported to the land of this case, but the defendant does not occupy the land of this case at present or there is no secured claim of the right of retention.
The Plaintiff seeks confirmation that there is no Defendant’s lien on the instant land.
B. The Defendant asserted that the subcontract was concluded on July 24, 2010 with respect to the instant land and completed the construction work. The Defendant did not receive the construction cost from the Maritime Integrated Construction.
Accordingly, the Defendant, after completing the construction work, occupied the land of this case with the claim for the construction cost as the secured claim, and exercised the lien on the land of this case.
3. Determination
A. In a lawsuit seeking confirmation of existence of a right of retention in a lawsuit seeking confirmation of existence of a right of retention, the person who claims the right of retention must assert and prove the fact of the requirements for its establishment and existence (see, e.g., Supreme Court Decision 2013Da84971, Jan. 29, 2015). As such, the Defendant, claiming the lien holder of the instant land, is liable to prove the existence of a right of retention as a fact
Since the possession of an object is not only a requirement for establishing a lien but also a requirement for existence, the lien holder shall continue to possess the object of the lien while it remains in existence, and if he loses that possession.