유치권 부존재 확인
1. The plaintiff's action of confirmation of existence of lien shall be dismissed as to real estate No. 23 of the annexed list No. 23.
2.Annex.
1. In full view of the facts without dispute over recognition and the evidence and the purport of the entire pleadings submitted by the plaintiff and the defendant, the following facts can be acknowledged:
The Plaintiff is a creditor of a loan by C Co., Ltd. (hereinafter referred to as “C”), who is a mortgagee of the real estate listed in the separate sheet (hereinafter referred to as “instant real estate”).
On January 9, 2020, the Plaintiff filed an application for the commencement of voluntary auction (the Jeju District Court D; hereinafter “instant auction case”) with respect to the instant real estate, and the registration of the entry of the decision to commence voluntary auction was completed on January 9, 2020.
On March 2, 2020, the Defendant reported the lien to C on March 2, 2020, with the claim for construction cost of KRW 202,405,50.
2. The Plaintiff, among the instant real estate, sought confirmation of the existence of the lien of the Defendant with respect to the above subparagraphs E and EF.
However, since the defendant himself recognizes that he does not exercise the right of retention on the above E and F, it is unlawful because there is no benefit to seek confirmation on the existence of the right of retention on such real estate.
3. Of the instant immovables, when a ruling to commence auction was rendered on the instant immovables, the seizure order prohibiting the debtor from disposing of the said immovables at the same time shall become effective, and the seizure order shall become effective when the ruling was served on the debtor or when the ruling to commence auction was registered.
Therefore, a person who acquired a lien only after the registration of the decision to commence the auction cannot claim his/her lien in the auction procedure.
(see, e.g., Supreme Court Decision 2010Da84932, Apr. 10, 2014; Supreme Court Decision 2005Da22688, Aug. 19, 2005). In other words, where the Defendant occupies the real estate after January 9, 2020, when the decision on commencing auction was registered in the instant auction case, the possession of the real estate cannot be asserted against the Plaintiff as the execution creditor against the effect of the prohibition of disposition of seizure.
However, according to the evidence No. 6, Jeju District Court's enforcement officer of this case.