유치권부존재확인
1. It is confirmed that the defendant's lien does not exist as to each real estate listed in the separate sheet;
2...
1. On January 6, 2016, the Plaintiff purchased each real estate listed in the separate sheet (hereinafter “instant real estate”) in the procedure of voluntary auction by Hongsung Branching the Daejeon District Court (hereinafter “instant auction procedure”) and acquired ownership by paying the sale price on or around January 6, 2016.
In the auction procedure of this case on August 12, 2015, the Defendant was unable to receive KRW 92,125,000 for the construction cost of the instant real estate, even though it completed gardening creation and tree planting construction on or before June 2014.
Then, the right of retention was reported.
[Reasons for Recognition] A without dispute, significant facts in this court, Gap 1, 4 (including each number in case of additional number), the purport of the whole pleadings
2. In a passive confirmation lawsuit, if the Plaintiff alleged that the cause of the obligation occurred by specifying the Plaintiff’s claim first, the Defendant, the obligee, bears the responsibility to assert and prove the facts constituting the elements of legal relationship. As such, in a lawsuit seeking confirmation of non-existence of a right of retention, the Defendant should assert and prove the existence of the subject matter of a right of retention and the related claim.
(see, e.g., Supreme Court Decision 2013Da99409, Mar. 10, 2016)
There is no evidence to acknowledge that the creation of a garden and the completion of tree planting construction on the instant real estate, and rather, according to the entry in Section B-1, the Defendant was sentenced to two years of imprisonment due to the crime of obstructing auction due to the fact that the Defendant reported a false lien in the instant auction procedure, etc. (Seoul District Court Decision 2016No51 Decided July 25, 2016).
Therefore, the defendant's lien on the real estate of this case is nonexistent, and the plaintiff who acquired the ownership of the real estate of this case in the auction procedure of this case has a benefit to seek confirmation.
3. Conclusion, the plaintiff's claim of this case is accepted as reasonable.