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Attached Form
As to the real estate stated in the list, the defendants and D Co., Ltd. under the construction contract on January 8, 2019 80 million won.
Reasons
1. The gist of the claim is that the Plaintiff, as the second mortgagee of the real estate listed in the separate sheet owned by E (hereinafter “instant officetel”), voluntarily filed an application for the auction to the Suwon District Court F on March 5, 2019 and the auction procedure is in progress on March 12, 2019. In the above auction procedure on March 25, 2019 between Defendant B and D, Defendant B entered the construction contract preparation date on January 8, 2019 between Defendant B and D on January 8, 2019. However, according to each description of the business registration certificate and evidence No. 5-6, and 7 attached to the construction contract, the construction contract date is recognized as January 8, 2019.
According to the construction contract, Defendant C filed a lien on the lien of KRW 800,000 as secured claim for the construction cost of the instant officetel remodeling project that was actually performed by Defendant C.
(hereinafter “the instant lien”). However, the Defendants did not occupy the instant officetel at present, and the said construction was not fully completed, so the said lien does not exist or there is no secured claim on the portion in which the entire portion is not completed.
Nevertheless, since the Defendants reported the false lien in the above auction procedure, the Plaintiff, who is the mortgagee of the instant officetel and the applicant for auction, has the interest to seek confirmation of the absence of the above lien.
2. Determination
A. The requirements for establishing a lien and the possession, which is the requirements for existence of a lien, refers to the objective relationship that appears to belong to the factual control of the person in terms of social norms. At this time, factual control is not necessarily limited to physical and practical control, but should be determined in conformity with the concept of society in consideration of the temporal and spatial relationship with the object, the relationship with the person in question, the possibility of exclusion from control of others, etc. However, it is objective that belongs to such factual control.