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(영문) 광주고등법원(전주) 2016.09.01 2016나10228

유치권부존재확인

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1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

Purport of claim and appeal

1.

Reasons

1. Basic facts

A. On April 15, 201, the Plaintiff loaned KRW 630 million to F, and was set up a collateral on the real estate listed in the separate sheet No. 1 (hereinafter “instant real estate”) that I or F owned as collateral and machinery and appliances listed in the separate sheet No. 2 (hereinafter “the instant machinery and appliances”).

B. After that, as F delayed the payment of principal and interest, the Plaintiff filed an application for voluntary auction with the Gunsan Branch C of the Jeonju District Court for the instant real estate on March 31, 2014, and the decision to voluntarily commence auction was completed on April 1, 2014, and the entry registration was completed on April 2, 2014.

(In the above auction procedure, the decision of comprehensive sale was made with respect to the machinery and apparatus of this case).

In the above auction procedure on June 16, 2014, Defendant A reported a lien on the claim for construction cost of KRW 600,000,000,000,000 from January 208 to March 2008, including civil and landscaping on E site, and Defendant B reported a lien on the claim for KRW 250,000,000,000,000,000,000, sled sled sled by E as each secured claim

[Ground of recognition] Facts without dispute, Gap's statements in Gap's 1 to 3, 6 through 8 (including each number in case of a tentative number), the purport of the whole pleadings

2. The assertion and judgment

A. In a lawsuit seeking confirmation of the non-existence of a lien, if the plaintiff asserts that the plaintiff denies the facts that cause the occurrence of the obligation by specifying the claim first in the lawsuit seeking confirmation of the non-existence of a lien, the defendant, the creditor, bears the burden of proving the facts that constitute the elements of legal relationship. Therefore, in a lawsuit seeking confirmation of the non-existence of a lien, the defendant must prove the existence of a claim with respect to the subject

B. On October 2007, Defendant A entered into a construction contract with Defendant A for construction cost of KRW 600 million around October 2007 in order to create E after purchasing the site where the instant real estate was located from Defendant A as to whether Defendant A’s lien was recognized. Defendant A, among the construction works, is a public works company and electrical construction company.