1. The part concerning the claim for confirmation of lien among the instant lawsuit is dismissed.

2. The plaintiff's remaining claims are dismissed.

3...

Plaintiff’s assertion

On August 7, 2014, the Plaintiff was awarded a contract for the construction of the building listed in the separate sheet (hereinafter “instant building”) by the Defendant, and completed the said construction. However, the Plaintiff was not paid KRW 39,584,400, out of the construction cost.

The Plaintiff is exercising the right of retention while occupying the instant building with the claim for the construction cost as the secured claim regarding the instant building.

Therefore, the Plaintiff seek against the Defendant the prohibition of interference with possession of the instant building at the same time, with the confirmation that the Plaintiff has a lien as the secured claim for the above construction cost.

We examine, ex officio, whether the part concerning the claim for confirmation of lien among the lawsuits of this case is legitimate or not.

A lawsuit for confirmation is permitted when there is a danger existing in the legal status and being judged by a judgment of confirmation is the most effective way to resolve the dispute, and there is no valid and adequate means to do so. Meanwhile, the right of retention is the right of creditors to refuse to hand over the goods to the owner of the goods until the creditor is reimbursed for the claim created with respect to the goods of another person.

Based on the above legal doctrine, if the building of this case was sold in the voluntary auction procedure on May 8, 2018, and the registration of ownership transfer was completed in the name of the third party on May 10, 2018 when the lawsuit of this case was pending, it is recognized that the Plaintiff seeking the confirmation of the existence of a lien against the owner of the building of this case or the Defendant, who is not the auction creditor on the building of this case, cannot be deemed an appropriate means to eliminate the uncertainty and danger of the Plaintiff’s existing right. Thus, the part of the Plaintiff’s claim for confirmation of a lien among the lawsuit of this case, as there is no benefit of confirmation.