유치권 부존재 확인
1. It is confirmed that the defendant's lien does not exist as to each real estate listed in the separate sheet.
2...
1. Facts of recognition;
A. The Plaintiff is a mortgagee of a right to collateral security, which has a maximum debt amount of 2,798,400,000 with respect to each of the real estate listed in the separate sheet owned by D (hereinafter “instant real estate”).
B. Voluntary auction procedure was initiated at the F of this Court upon the application of E with respect to the instant real estate.
C. In the above auction procedure, the Defendant reported the lien of KRW 20,476,00 on D as the secured claim for the boiler work cost of KRW 20,476,00.
[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 2, and 3, 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 burden of proving the facts regarding the requirements of the right relationship. As such, in a lawsuit seeking confirmation of non-existence of the right of retention, the Defendant must prove and prove the existence of the subject matter of the right of retention and the related claim.
(see, e.g., Supreme Court Decision 2013Da99409, Mar. 10, 2016). With respect to the instant case, it is insufficient to recognize the fact that the Defendant occupied the instant real estate only by the health unit and the evidence submitted by the Defendant, and there is no other evidence to acknowledge it.
The report on the status quo of real estate submitted in the auction procedure does not include the defendant's possession.
The grounds for the Defendant’s assertion that he occupied the instant real estate are as follows: (a) posting a banner; (b) cutting the important parts of the boiler and posting such intent on the boiler side of the boiler in the household; and (c) holding the key password of a certain household.
However, even according to the defendant's assertion, the banner informing the exercise of the right of retention was detached at the owner's request.
Since the attachment was repeated, it cannot be deemed that the possession was continued through the banner.
The defendant's parts of boiler are deducted and the same.