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1. It is confirmed that the defendant's lien does not exist with respect to the real estate listed in the attached list.
2...
Reasons
Although the Plaintiff did not have a lien on the real estate listed in the separate sheet (hereinafter “instant real estate”), the Plaintiff reported that the Defendant had a lien equivalent to KRW 143,00,000 in the instant court B real estate auction case, and that the Plaintiff had a lien on the instant real estate as a secured claim, and thus, it is seeking confirmation that the Defendant’s non-existence of a lien on the instant real estate as a mortgagee of the instant real estate, as the secured claim.
A person who possesses another person's articles or securities has the right to retain such articles or securities until repayment thereof is made if the claim created with respect to such articles or securities is due (Article 320 (1) of the Civil Act). However, for the establishment and existence of such right of retention, the objective possession, which appears to belong to the factual control of the person in terms of social norms, shall continue to exist.
In addition, as in the instant case, if the Plaintiff asserts that the cause of the right is denied by specifying the first claim in advance, the Defendant, claiming that he/she is the right holder, bears the burden of asserting and proving the facts constituting the requisite of his/her legal relationship (see, e.g., Supreme Court Decision 97Da45259, Mar. 13, 1998). Therefore, the Defendant, claiming that he/she is the right holder, is liable to assert and prove the existence of the secured claim and the possession of the pertinent real estate
As to the instant case, the Health Board, as alleged by the Defendant, holds claims against the Defendant.
Since there is no evidence to prove that the real estate of this case was possessed as of the closing date of the pleadings of this case, there is no right of retention of the defendant as to the real estate of this case, and as long as the defendant contests this, there is a legal interest to seek confirmation of non-existence of a right of retention against the defendant.
Then, the plaintiff's objection.