1. Ascertainment that the defendant's lien does not exist with respect to the real estate listed in the attached list.

2...

1. Facts constituting the premise of the dispute;

A. On March 29, 2012, the Plaintiff is a mortgagee of a right to collateral security with a maximum debt amount of KRW 650,000,000 with respect to real estate listed in the separate sheet owned by B (hereinafter “instant real estate”). On March 28, 2013, the Plaintiff filed an application for voluntary auction with respect to the said real estate, and the registration of voluntary decision to commence the auction was completed.

B. In the above auction procedure on April 29, 2014, the Defendant reported the right of retention by asserting that “the Defendant lent KRW 92,650,000 to B, and received KRW 300 from B as security,” the Defendant reported the right of retention.

[Ground of recognition] Facts without dispute, entry of Gap 1 and 2 evidence (including paper numbers), the purport of the whole pleadings

2. The plaintiff's assertion that the defendant did not possess the real estate of this case, and the loan claims reported by the defendant as the secured debt of the right of retention did not match the real estate of this case, and even if a right of retention exists, it cannot be asserted against the plaintiff since it occurred after the registration of the decision of commencement of auction.

3. Determination

A. To establish a right of retention, it shall be an obligation arising with respect to an article (see Article 320(1) of the Civil Act). The requirements for establishing a right of retention as stipulated in Article 320 of the Civil Act and the possession, which is the requirements for existence of a right of retention, shall be deemed to belong to the factual control of the person in terms of social norms. At this time, the factual control is not necessarily limited to the physical and practical control of an article, but should be judged in conformity with social norms in consideration of the temporal and spatial relationship with the article, the relationship between the time and the principal right, the possibility of exclusion from control of others, etc. However, in order to be in an objective relationship that is subject to such factual control, at least the interference of others should be excluded, and Supreme Court Decisions 73Da923 Decided July 16, 1974; 2002Da34543 Decided July 25, 2003;