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1. It is confirmed that the Defendants’ lien does not exist with respect to real estate listed in the separate sheet.
2...
Reasons
1. Basic facts
A. On October 23, 2013, the Plaintiff filed an application for a voluntary auction of real estate on the real estate listed in the separate sheet owned by C (hereinafter “instant land”). On October 23, 2013, the said court rendered a voluntary decision to commence the auction of the instant land.
B. As to the instant land in the instant auction procedure for real estate rent (hereinafter “instant auction procedure”), Defendant Sam Young Construction Co., Ltd. reported each right of retention with the claim for construction cost and rent of KRW 140,986,720 on November 22, 2013, Defendant A as the claim for construction cost of KRW 150,000,000 on November 26, 2013, and Defendant B as the claim for construction cost of KRW 57,90,000 on February 26, 2014.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Gap evidence Nos. 4 and 6, each of the statements, the purport of the whole pleadings
2. The assertion and judgment
A. The Plaintiff’s assertion that the Defendants owned the instant land by asserting that there was a claim for construction cost by installing a non-completion structure on the instant land. However, the Defendants’ claim for construction cost incurred only with respect to the new construction of a building, and is not a claim regarding the instant land, and there is no lien reported by the Defendants in the auction
B. 1) In a lawsuit seeking passive confirmation, if the Plaintiff asserts that the cause of the right is denied by specifying the Plaintiff’s claim first, the Defendant is liable to prove and prove the facts constituting the requisite of the right relationship (see Supreme Court Decision 97Da45259, Mar. 13, 1998). If the contractor who constructed the new building occupies the building and claims for the construction cost incurred in the building, the contractor has the right to attract the building until he/she is reimbursed for the claim, but the contractor has installed the fixtures that the contractor is not considered independent of the socially accepted social norms on the land.