(영문) 부산고등법원 2020.11.05 2020나50501

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(영문) 부산고등법원 2020.11.05 2020나50501

배당이의

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1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. The reasoning of the judgment of the court of first instance regarding this case is as stated in the reasoning of the judgment of the court of first instance, except for the addition of “the 5th page 9 of the judgment of the court of first instance” as stated in the main sentence of Article 420 of the Civil Procedure Act.

(3) On August 17, 2016, the Plaintiff filed a lawsuit against the Defendant for the confirmation of the existence of a lien (hereinafter “instant lien lawsuit”) with the Cheongju District Court 2016Kahap2292, as the Cheongju District Court Decision 2016Kahap2292.

Upon filing a lawsuit, the defendant prepared and delivered a written waiver of the right of retention, and consented to the withdrawal of the lawsuit on May 31, 2017, and asserts that if the defendant actually has a claim for construction price, the defendant would not waive the right of retention.

In full view of each of the statements in Eul evidence Nos. 6 through 9, although the defendant, a successful bidder of the real estate at auction, who is a successful bidder of the real estate at auction, is undergoing the collection procedure based on the notarial deed of this case on the unpaid construction price, the defendant argued that it is improper to separately exercise the right of retention. Accordingly, the defendant entered into an agreement with N to pay 40 million won for the exercise of the right of retention to N in the collection procedure based on the notarial deed of this case and agreed to withdraw the lawsuit of this case. Under such agreement, N prepared and delivered a payment note with the purport that N will pay 40 million won toO on May 31, 2017, but since N failed to perform its duty of monetary payment based on the notarial deed of this case, it is recognized that N applied for the payment order of KRW 40 million from Cheongju District Court Decision 2017No104747, Apr. 1, 2018.

According to the above facts of recognition, the defendant shall recover the unpaid construction cost of this case.

참조조문

-민사소송법 제420조

유사 판례

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-인천지방법원 2015.01.15 2013가합2449

-대전지방법원천안지원 2016.10.13 2015가단17483

-대전고등법원 (청주) 2014.11.13 2014노87