(영문) 인천지방법원부천지원 2015.10.28 2015가합1238

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(영문) 인천지방법원부천지원 2015.10.28 2015가합1238

유치권존재확인

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1. The instant lawsuit shall be dismissed.

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

Reasons

1. Determination as to the legitimacy of the instant lawsuit

A. On August 26, 2013, the Plaintiff asserted that the instant construction contract was concluded between the Defendant and the Defendant for the construction contract with the term of construction from August 27, 2013 to December 30, 2013; and the construction contract with the term of construction payment of KRW 617,00,000 for the construction work; and the construction work of this case was completed until December 30, 2013, when the term of completion expires.

However, the Defendant paid the Plaintiff KRW 135,000,000 out of total construction cost of KRW 617,000,000, and did not pay the remainder of KRW 482,00,000.

Accordingly, from April 1, 2015, the Plaintiff occupied the instant building and exercised a lien on the instant building.

In addition, the Plaintiff applied for a payment order against the Defendant seeking payment of the said amount of KRW 482,00,000,000 for the payment of the unpaid construction cost as the Suwon District Court Branch Branch Branch 2015Da711, and the payment order was finalized on April 7, 2015.

The Plaintiff seeks confirmation against the Defendant that there exists a lien on the instant building in order to receive the said claim for the construction cost from the Defendant.

B. Determination ex officio, the lawsuit for confirmation is permissible in cases where the Plaintiff’s right or legal status exists, and the judgment of confirmation is the most effective and appropriate in resolving the dispute, and in cases where it is recognized that there is no other effective and adequate means except for the judgment of confirmation. However, insofar as the Plaintiff exercised a lien on the building of this case but the Defendant did not dispute the existence of the Plaintiff’s right of retention by seeking delivery of the building of this case against the Plaintiff, etc., it cannot be said that there exists any apprehension and danger in the Plaintiff’s right or legal status. Thus, the Plaintiff’s lawsuit of this case seeking confirmation of existence of the right of retention against the Defendant.

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