(영문) 대구지방법원경주지원 2015.12.22 2015가단3566

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(영문) 대구지방법원경주지원 2015.12.22 2015가단3566

유치권부존재확인

Text

1. Of the instant lawsuit, the part of the claim for the confirmation of existence of lien shall be dismissed.

2. The defendant shall enter the attached list in the plaintiff.

Reasons

1. Basic facts

A. The building indicated in the separate sheet (hereinafter “instant building”) was originally owned by C. The agricultural cooperative of two North Korea (hereinafter “FFFF”) completed the registration of the establishment of a mortgage with respect to the said building on January 22, 2010 as the maximum debt amount of KRW 167,00,000, debtor D, and creditor two North Korea Agricultural Cooperatives.

B. The two North Korean Agricultural Cooperatives filed an application for voluntary auction of the instant building to Daegu District Court race-Support, and on July 22, 2014, the said court rendered a decision to voluntarily commence auction of the said building and completed the registration of the entry of the decision to voluntarily commence auction of the said building on the same day.

C. On July 28, 2015, the Plaintiff sold the instant building during the said voluntary auction procedure and completed the registration of ownership transfer on the same day.

On the other hand, the Defendant reported a lien of KRW 84,00,000 as the secured claim, on October 7, 2014, on the ground that “the Defendant completed the construction upon request from C, the owner of the instant building, with the electrical construction (including the extension of the license), etc. at the time of the construction of the instant building, but did not receive the construction cost up to now,” and currently occupies the instant building.

[Judgment of the court below] The ground for recognition is without merit, Gap evidence Nos. 1, 2, and 3, and the ground for appeal

2. Of the instant lawsuit, the benefit of confirming the illegality of the part of the claim for confirmation of existence of a lien is recognized when the Plaintiff’s interest or legal status is the most effective and appropriate means to obtain a judgment of confirmation in order to eliminate such apprehensions, and permitting the claim for confirmation of existence of the right to claim performance itself is not effective in eliminating apprehensions and cannot be permitted in principle in light of the economy of the lawsuit.

(see, e.g., Supreme Court Decision 94Da59257, May 26, 1995). ex officio, see, e.g., Supreme Court Decision 94Da59257, May 26, 1995.

참조판례

-대법원 1995. 5. 26. 선고 94다59257 판결

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