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(영문) 대구지방법원김천지원 2016.04.29 2015가합15460
유치권부존재확인
Text

1. It is confirmed that the defendants' lien does not exist with respect to real estate stated in the attached list.

2...

Reasons

1. Basic facts

A. On December 5, 2013, the Plaintiff loaned KRW 2.5 billion to C on December 5, 2013, and received the right to collateral security of KRW 3.25 billion with respect to each real estate (the land indicated in paragraph (1) is referred to as “the instant land”; the building indicated in paragraph (2) is referred to as “the instant building; and the entire land and buildings are referred to as “each of the instant real estate”).

B. On October 6, 2014, the Plaintiff filed an application for the commencement of voluntary auction with respect to each of the instant real estate, and then rendered a decision to commence voluntary auction (Seoul District Court Kimcheon Branch D, hereinafter “instant voluntary auction”) on the following day.

C. On May 27, 2015, in the instant voluntary auction procedure, the Defendants asserted that there exists a claim for construction payment as follows with respect to the instant building, and reported the right of retention.

1. The bond name of Defendant A: The contract date of all repair works: The construction period on January 20, 2014: from January 20, 2014 to April 20, 2014: the amount of construction cost: 350,000 won (excluding value-added tax): 330,000 won;

2. The bond name of Defendant B’s bond: The contract date on February 15, 2015: 320 million won (excluding value-added tax): The amount receivable at KRW 270 million (excluding value-added tax): the fact that there is no dispute over the ground for recognition), each entry (including each number), written in subparagraphs 1 through 6 (including each number), and the purport of the whole pleadings;

2. The parties' assertion and judgment

A. The plaintiff asserts that there is no lien on each real estate of this case by the defendants, since the defendants created a false claim for construction price in collusion with C, and there is no lack of possession of each real estate of this case.

As to this, the Defendants asserted that they completed the same construction work as the above lien report, and that they occupy each of the instant real estate based on the construction cost claim.

B. In the case of a lawsuit seeking confirmation of the existence of an obligation against Defendant A, the Plaintiff, the obligor, first of all, files a claim.

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