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(영문) 광주고등법원(전주) 2013.09.26 2012나1837
유치권부존재확인의소
Text

1. The part against the defendant in the judgment of the first instance shall be modified as follows:

Real estate of paragraph (1) of attached Table 1.

Reasons

1. Basic facts

A. In order to secure loan claims against C, the Bank of Korea (hereinafter “Korea Bank”) completed the registration of creation of a collateral for each real estate listed in the separate sheet No. 1 of the attached sheet No. 3 of the attached sheet No. 1 (hereinafter “instant land”), the real estate listed in the attached list No. 2 of the attached sheet No. 3 of the attached sheet as “instant building”) on June 12, 2007, with the maximum debt amount of 1,560,000,000 won, and the debtor C as the debtor.

B. Since the decision to commence the voluntary auction, as C failed to repay the above loans, the Bank applied for a voluntary auction on the instant land and buildings to the Jeonju District Court Gunsan Branch E (hereinafter “instant auction”) and received the decision to commence the voluntary auction on February 17, 201, and the entry registration of the said decision to commence the auction was completed on the same day.

C. On March 11, 201, when the instant auction procedure was in progress, the Defendant filed a lien report on each of the instant real estate by asserting that the Defendant had a claim for construction price of KRW 431,00,000 for the instant building, and that the Codefendant B Codefendant B (hereinafter “B”) of the first instance trial had a claim for construction price of KRW 86,832,40 for part of the third floor of the instant building on May 25, 2011.

On the other hand, on June 28, 201, the Plaintiff acquired the claim for the above loan from the Bank to C and the right to collateral security on the instant land and building from the Bank.

[Ground of recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2-4, Gap evidence 5-1 and 2-2, the purport of the whole pleadings

2. The parties' assertion

A. The Plaintiff’s assertion ① No claim for construction price against the Defendant C does exist, and even if so, the above claim exists.

Even if the above construction cost claim has been completed and expired on November 30, 2010 after three years have elapsed since the short-term extinctive prescription from November 30, 2007, which was completed after the completion of construction, the lien cannot be recognized.

(2) The defendant shall raise objection.

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