유치권부존재확인청구의소
1. It is confirmed that the defendant's lien does not exist with respect to the real estate listed in the attached list.
2...
1. Basic facts
A. As to the real estate listed in the separate sheet No. B (hereinafter “instant 502”), the Plaintiff completed the registration of creation of a mortgage on January 15, 2015, and on April 14, 2015, the Plaintiff filed an application for voluntary auction with the Seoul Central District Court DD on April 14, 2015 and completed the registration of entry following the decision to commence voluntary auction on April 15, 2015.
B. In the above auction procedure, on May 1, 2015, the Defendant had a claim for reimbursement of KRW 186,000,000 at the cost of interior interior interior interior interior interior decoration with respect to the instant 502, and submitted a report on the right of retention to exercise the right of retention, which possesses the instant 502 until the said money is repaid.
[Ground of recognition] There is no dispute, Gap evidence Nos. 1 through 5, 10, Eul evidence No. 3 and the purport of the whole pleadings
2. 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, a 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). A person who acquired a right of retention after the registration of the decision on commencement of auction with respect to a certain real estate becomes a registration of the decision on commencement of auction cannot claim his/her right of retention against the purchaser, etc. of the auction procedure (see, e.g., Supreme Court Decision 2010Da84932, Apr. 10, 2014); and a person who claims a right of retention must prove the fact that he/she commenced possession before the registration of the decision on commencement of auction with respect
In addition, possession, which is the requisite for establishing a lien under Article 320 of the Civil Code, refers to the objective relationship in which the object belongs to a person's factual control in light of social norms. At this time, factual control is based on the concept of society taking into account the time and spatial relationship with the object, the relationship between principal and another person, and the possibility of excluding another person's control.