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. On October 18, 2017, the Plaintiff filed an application for voluntary auction of the said real estate as a mortgagee of each real estate listed in the separate sheet (hereinafter “instant real estate”) on or before October 18, 2017. On or around July 1, 2018, the Defendant submitted a lien report regarding the instant real estate at the above auction procedure.
On the other hand, the registration of the decision on commencing auction on the instant real estate was made on October 19, 2017.
[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3 (including paper numbers) and the purport of the whole pleadings
2. Determination
A. The plaintiff's assertion does not occupy the real estate of this case, and there is no secured claim of the right of retention claimed by the defendant.
B. 1) As to a certain real estate, a person who acquired a lien by transfer after having been registered to commence the auction procedure cannot claim his/her right of retention in the auction procedure (see, e.g., Supreme Court Decision 2005Da22688, Aug. 19, 2005). 2) The Defendant submitted a field photograph (No. 3) with the indication “in the course of exercising the right of retention” as evidence that he/she occupied the real estate of this case.
However, on October 27, 2017, the certificate of the current status of the instant real estate issued by the auction court (Evidence 4 of the A), stating that the possession relationship is “unexplosive,” and that the appraisal report (Evidence 5 of the A) on the instant real estate issued on November 3, 2017, which was prepared by the Plaintiff’s employees, does not include any special indication on the possession relationship, and that the local reply report (Evidence 6 of the A) on the securities issued by the Plaintiff’s employees on July 26, 2018 states that “No sign, brand card, etc. to identify the lien holder’s name, contact number, etc.” is written.
The above current status survey report, appraisal report, and local real estate answer report are accompanied by the field photo of the real estate of this case, and it is not possible to confirm the lien indication on the field photo submitted by the defendant.
3. Comprehensively taking account of the above circumstances, the defendant of this case.