유치권부존재확인
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. On June 19, 2014, the Plaintiff purchased real estate listed in the separate sheet (hereinafter “instant real estate”) in the B auction procedure with the Jeonju District Court, Jeonju District Court, and paid the price thereof, and acquired ownership.
B. In the above auction procedure, the Defendant reported the lien on the instant real estate with the claim for construction cost of KRW 4,382,00 as the secured claim.
[Ground of recognition] Facts without dispute, evidence Nos. 1-3 and 3-3, purport of the whole pleadings
2. The plaintiff's assertion and judgment
A. The right of retention asserted by the plaintiff by the defendant is not only a secured claim but also a false right which does not meet the requirements for possession.
B. Determination 1) In a lawsuit seeking passive confirmation, the Defendant, a right holder, is liable to assert and prove the fact that the Plaintiff denies the cause of the right first (see, e.g., Supreme Court Decision 97Da45259, Mar. 13, 1998). In this case, even in order to oppose interested parties, such as the purchaser, etc. of the auction procedure for the instant real estate, the Defendant should have acquired the lien by occupying the said real estate prior to October 4, 2013 (see, e.g., evidence 1-3) by occupying the said real estate.
Therefore, as to whether or not the Defendant started possession of the instant real estate before October 4, 2013, each video of Nos. 1-1 and 2-2 is insufficient to recognize the said fact, and there is no other evidence to acknowledge it.
3. Therefore, the Defendant’s claim for construction cost as the secured claim regarding the instant real estate.