유치권 부존재 확인
1. As to each real estate listed in the separate sheet:
A. The secured claim amounting to KRW 780,000,000 for Defendant B Company is the secured claim.
1. Basic facts
A. On April 23, 2018, the Plaintiff completed the registration of the establishment of a neighboring mortgage of KRW 2,210,000,000 with respect to each real estate listed in the separate sheet owned by E (hereinafter “each of the instant real estate”).
B. On January 31, 2019, the Plaintiff filed an application for voluntary auction with respect to each of the instant real estate, and on February 1, 2019, the decision to commence voluntary auction was issued with the Suwon District Court F, and the procedure for voluntary auction of real estate (hereinafter “instant auction procedure”).
C. In the instant auction procedure, the Defendants asserted that they have the claim for construction cost as indicated below, and submitted a lien report.
The amount of the defendant No. 1 B Co., Ltd. 780,000,000 2 Co., Ltd. 3500,000,000 3 D Co., Ltd. 822,000,000 / [Grounds for Recognition] Gap’s 1 through 6 (including branch numbers; hereinafter the same shall apply)
2. Since the Plaintiff’s claim for the payment of the construction cost claimed by the Defendants is nonexistent or falsely unrefilled, it cannot be acquired a lien with the secured claim, and the Defendants did not occupy each real estate of this case, thus seeking confirmation that each lien of the Defendants does not exist.
3. Determination
A. As to the claim against Defendant B Co., Ltd., the requirements for the establishment of a lien and the possession, which is the requirements for the existence of a lien, are deemed to belong to the factual control of the person. At this time, the factual control is not necessarily limited to the physical and practical control of the object, but should be determined in accordance with the social concept in consideration of the time and spatial relationship with the object, the principal right relationship with the object, the possibility of exclusion from other people’s control, etc. However, in order to be in an objective relationship that is a factual control, at least the other person’s interference should be excluded.
In addition, the absence of lien is confirmed in the lawsuit.