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(영문) 서울고등법원 2019.06.21 2018나2058302
유치권 부존재 확인
Text

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

Purport of claim and appeal

1.

Reasons

1. Facts of recognition;

A. The Plaintiff’s right to collateral security and right to collateral security 1) In the trade name of a corporation H Co., Ltd. (hereinafter “agricultural company”) or “stock company” are omitted.

(1) Upon obtaining a loan from an I bank, H completed the registration of the establishment of each of the instant real estates indicated in the separate sheet (hereinafter collectively referred to as “each of the instant real estates”) with respect to the real estates indicated in the separate sheet Nos. 1, 2, and 3, as indicated in the separate sheet (hereinafter referred to as “each of the instant real estates”). On May 8, 2014, the maximum debt amount of KRW 1.4 billion, and the maximum debt amount of KRW 1.8 billion on June 9, 2015.

2) After the establishment of a mortgage contract in addition, the establishment of each of the instant real estates was completed (hereinafter collectively referred to as the “each of the instant collateral mortgages”).

(2) On March 29, 2017, the Plaintiff acquired a claim from an I Bank from the I Bank, and completed the supplementary registration prior to each of the instant mortgages.

B. As to each of the instant real estate, the commencement of the auction procedure and the Defendants’ filing of a lien report 1) regarding each of the instant real estate, the creditor K received a decision on compulsory commencement of auction on July 8, 2016 (J) and completed the registration of a decision on compulsory commencement of auction, and the I Bank completed the registration of a decision on voluntary commencement of auction on February 3, 2017 (J) and the registration of a decision on voluntary commencement of auction. The instant two auction procedures were conducted by double auction (hereinafter referred to as “the instant auction procedures”).

2) In the instant auction procedure, the Defendants reported each right of retention with respect to the claim for the construction cost against H as the secured claim as follows.

Details of the Defendant’s notification date of the filing date of the report No. 1 B B on August 25, 2016, including construction cost of 126,199,99 KRW 2D 2D on December 6, 2016, KRW 3 E 258,77 million on December 16, 2016, KRW 247 million on December 16, 2016, KRW 4 G 4 G 15,1 million on April 11, 2017, the fact that there is no dispute over the construction cost of KRW 150,1 million on April 11, 2017, and evidence No. 1 attached thereto.

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