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1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
Purport of claim and appeal
1...
Reasons
1. The reasoning of the judgment of the court of first instance cited this case is as stated in the reasoning of the judgment of the court of first instance, except where the court added a judgment on the defendant's main defense to the defendant's main defense as set forth in the following paragraph (2).
2. The defendant asserts that the lawsuit of this case is unlawful since the plaintiff can receive a distribution of all of the claims during the auction procedure of this case. Thus, it is inappropriate to institute the lawsuit of this case without the completion of the auction procedure of this case, and the lien does not vary in the scope of the object which exists or is effective depending on the scope of the secured claim. Thus, the lawsuit of this case seeking confirmation of non-existence by setting the scope
The lien holder is not able to request the successful bidder to pay the secured debt, but may refuse to deliver the real estate, which is the object of the custody, until his/her secured debt is repaid, so the bidder at the auction procedure will not easily deliver the object of the auction from the lien holder after the successful bid. Accordingly, the real estate for the auction is likely to be awarded at the lower price.
As such, the risk of sales itself impossible due to a large amount of lien report compared to the value of the object of auction is the unstable legal status of the mortgagee in the auction procedure. Therefore, the benefit of the mortgagee who removes the said apprehension cannot be considered as a mere de facto and economic benefit.
Therefore, the mortgagee has a legal interest in seeking confirmation of the absence of the right of retention exceeding the scope that can be set up against the person who reported the right of retention in an auction procedure as well as the absence of all of the right of retention, and as a result of a trial, the person who reported the right of retention has the right