(영문) 대전고등법원(청주) 2020.05.06 2019나2828

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(영문) 대전고등법원(청주) 2020.05.06 2019나2828

유치권 부존재 확인

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1. The part of the first instance judgment against the Defendants shall be revoked.

2. The plaintiff's lawsuit against the defendants is dismissed in entirety.

Reasons

1. The reasoning of this court’s judgment on this part of the underlying facts is as stated in Article 420 of the Civil Procedure Act, except for adding “E. The owner of the instant building was changed from August 30, 2018 to B Co., Ltd. upon the Plaintiff’s application by the owner of the instant building at the request of the Plaintiff.” As such, this part of the reasoning of the judgment of the first instance is identical to that of Paragraph 1.

2. Determination on the defense prior to the merits

A. The gist of the Defendants’ assertion was that the Plaintiff changed the owner of the instant building to B Co., Ltd. on August 30, 2018, and no longer has the benefit to seek confirmation that there was no lien of the Defendants as to the instant building. Therefore, the instant lawsuit is unlawful.

B. 1) Determination 1) A lawsuit for confirmation is permitted when there is a danger in existence in the Plaintiff’s rights and legal status and obtaining a judgment of confirmation is the most effective and appropriate means to resolve the dispute (see, e.g., Supreme Court Decision 2014Da30803, Jun. 29, 2017). 2) The fact that the owner of the building of this case was changed to B corporation upon the Plaintiff’s application during the proceeding of the instant lawsuit is as seen earlier.

As long as the Plaintiff lost the position of the owner of the instant building, even if the Defendants asserted the right of retention on the instant building, there is no evidence to deem that there is any apprehensions in what legal status of the Plaintiff (the Plaintiff did not reply to the aforementioned assertion by the Defendants). Even if the Plaintiff was rendered a judgment on the existence of the right of retention against the Defendants, its effect does not extend to any third party, including B Co., Ltd., and thus, it is difficult to view that it is the most effective and appropriate means to resolve any dispute that may arise between the Plaintiff and the Defendants, as well as the Defendants.

3. Therefore, the instant lawsuit is unlawful as there is no benefit of confirmation.

3. Thus, the plaintiff's defendants.

참조조문

-민사소송법 제420조

참조판례

-대법원 2017. 6. 29. 선고 2014다30803 판결

유사 판례

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-대구지방법원경주지원 2016.08.19 2016가합189

-대구지방법원 2017.03.15 2016가단36826

-창원지방법원 2016.07.15 2016가단7497