1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

1..

1. The reasoning for this part of the judgment of the court is the same as that of the judgment of the court of first instance, and thus, this part of the judgment is cited in accordance with the main sentence of Article 420 of the

2. The Defendant asserted that the instant real estate has a lien on the instant real estate since it did not receive KRW 258,00,000 for the construction cost, even though the Defendant performed the civil construction work on the instant real estate after being awarded a contract by the owner E for the instant real estate. As to the claim that there was a lien on the instant real estate, the Plaintiff asserted that there was no lien on the instant real estate since the Defendant failed to complete the said civil construction work before August 31, 2017, the entry registration of the decision on commencing the auction procedure was completed, and it cannot be deemed that the Defendant occupied the instant real estate. Therefore, the Defendant’s lien did not exist.

3. Determination

A. In a passive confirmation lawsuit, if the Plaintiff asserts that the cause of the obligation exists by specifying the Plaintiff’s claim first in advance, the Defendant, the obligee, bears the burden of proving the facts constituting the requisite of legal relationship. As such, in a lawsuit seeking confirmation of non-existence of a lien, the claimant of the lien should assert and prove the fact that the claim has been established and continued to exist (see, e.g., Supreme Court Decision 2013Da9409, Mar. 10, 2016). However, the right of retention is established only when the claim arising with respect to the subject matter is due (see, e.g., Article 320 of the Civil Act). On the other hand, where the obligee acquired the right by taking over the possession of the said real estate or acquiring the construction cost claim after the seizure takes effect due to the completion of the registration of the entry in the decision of commencement of auction on the real estate owned by the obligor, the obligee cannot oppose the buyer in the auction procedure

Supreme Court Decision 2005Da22688 Decided August 19, 2005, Supreme Court Decision 2005Da22688 Decided October 13, 2011, Supreme Court Decision 2011Da5214 Decided October 13, 201