2019Gahap28259 Confirmation of the non-existence of a lien

A Company A

Yeongdeungpo-gu Seoul

Seoul Seocho-gu

Park ○○○

Law Firm Law Firm

Kim 00

Suwon-gu Suwon-gu

April 29, 2020

May 27, 2020

1. It is confirmed that the defendant's lien does not exist with respect to each real estate listed in the separate sheet. 2. Litigation costs are borne by the defendant.

It is as set forth in the text.

1. Basic facts

[Grounds for Recognition: Facts without dispute; entries in Gap evidence Nos. 1, 2, 3, 4, and 7 (including each number; hereinafter the same shall apply); the purport of the whole pleadings]

A. On November 4, 2014, a cooperative association established a right to collateral security on each of the real estate listed in the separate list owned by Kim O (hereinafter “instant land and building”) and applied for a voluntary auction on the basis of the aforementioned right to collateral security (hereinafter “instant auction procedure”) (hereinafter “instant auction procedure”) commenced.

B. On August 14, 2019, Plaintiff acquired the aforementioned secured debt, and succeeded to the instant auction procedure around August 28, 2019 after completion of the additional registration of the transfer of the right to collateral security regarding the instant land and building.

C. On June 11, 2019, at the instant auction procedure, Defendant reported the right of retention with regard to “52 guest rooms among the instant buildings: (a) the lessee and the lessee of the instant land and buildings as well as claims for loans, etc.; and (b) the expenses for opening and repairing the instant building and the cost of construction or the cost of construction or the property of facilities KRW 320 million; and (c) on the same day, Defendant reported the right of retention with the secured claim. Of the instant buildings, Defendant occupied the first floor, part of the instant building, the second floor, and the nine floors.

2. The assertion and judgment

A. The allegations of the Parties

With respect to the plaintiff's seeking confirmation of the absence of lien on the land and building of this case by the defendant

Defendant asserts that the lessee of the instant building has a lien equivalent to KRW 320,000,000,000, such as the interior construction cost and facility property, with the secured claim.

B. Determination

Article 626 of the Civil Act provides for the lessee’s obligation to repay the leased property. The necessary expenses refer to the expenses incurred by the lessee in order to increase the lessee’s objective value of the leased property. Thus, the expenses incurred by the lessee for the maintenance of leased property. Thus, the expenses incurred for the repair of facilities or the expenses for the installation of facilities installed by the lessee for operating a business in the leased building are not considered as beneficial or necessary expenses. However, it is insufficient to recognize the fact that each image or statement in the evidence Nos. 4 through 8 is sufficient to increase the expenses the Defendant invested in, or for the preservation thereof, to increase the objective value of the building of this case. There is no evidence to acknowledge otherwise. Accordingly, the expenses incurred by the Defendant for the installation of the said facilities do not constitute beneficial or necessary expenses.

According to the statement in the evidence No. 3 of the defendant's assertion that the expenses of the defendant's assertion constituted this benefit cost or necessary cost, the defendant entered into a lease agreement with Kim ○, around April 10, 2018 on the lease of part of the building of this case and agreed to recover and return the leased object after the termination of the lease (Article 5 of the lease agreement). According to this, it is reasonable to deem that the defendant has given up in advance the right to demand reimbursement of the cost of the construction on the building of this case, which is the leased object (see, e.g., Supreme Court Decision 2012Da3609, Mar. 29, 2012).

Therefore, the defendant's right of retention on the land and building of this case does not exist, and as long as the defendant reported a right of retention in the auction procedure of this case, there is a benefit to seek confirmation of non-existence as the mortgagee of the land and building of this case as a person interested in legal interests.

3. Conclusion

If so, the plaintiff's claim is accepted on the ground of the reason.

Justices Kim Chang-tae

Judges Kim Jong-sung

Judges Kim Jong-soo

1) Gangnam branch court of Chuncheon District Court 2019 Doz. 31121