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(영문) 전주지방법원 군산지원 2018.03.20 2017가단3234
유치권 부존재 확인

1. It is confirmed that the defendant's lien does not exist with respect to the real estate listed in the attached list.



Basic Facts

The Plaintiff is a mortgagee who completed the registration of establishment of a neighboring mortgage on the real estate listed in the separate sheet (hereinafter “instant real estate”) to secure loan claims against C. As C did not repay the principal and interest of the loan, the Plaintiff filed an application for a voluntary auction of real estate with the Jeonju District Court Military Accounting Branch D, and on August 22, 2016, the registration of the decision on voluntary auction of the instant real estate was completed.

(2) On April 10, 2017, the Defendant submitted a lien report to the instant auction procedure on April 10, 2017, by asserting that the Plaintiff, as a lessee of the instant real estate, has a right to claim reimbursement of necessary and beneficial expenses, including the cost of the facility construction incurred to improve the instant real estate located in a private teaching institute facility as a residential facility.

On June 8, 2017, the Plaintiff filed the instant lawsuit seeking confirmation that there was no Defendant’s lien on the instant real estate.

[Ground of recognition] In the absence of dispute, Gap evidence Nos. 1 and 2, and in the lawsuit for confirmation of existence of the entire purport of the right of retention, if the plaintiff asserts that the existence of the cause of the right of retention seeking confirmation of absence by specifying the plaintiff's first claim is denied, the defendant is liable to prove the existence of the right of retention, which is the element of the right of retention, and the possession of the object.

(see, e.g., Supreme Court Decision 2013Da99409, Mar. 10, 2016). Meanwhile, the necessary cost, which is the premise of the right of retention of the Defendant’s assertion, refers to the cost disbursed for the preservation of an object.

In addition, beneficial expenses refer to expenses disbursed for the improvement of an object to objectively increase the value of the object, and expenses disbursed for the purpose of a lessee’s subjective benefit or a specific business (see, e.g., Supreme Court Decision 2005Da52719, May 11, 2006; Supreme Court Decision 2005Da52726, May 11, 2006).