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(영문) 인천지방법원 2015.10.23 2014가합55150
유치권 부존재 확인의 소
Text

1. The plaintiff's lawsuit against the defendants is dismissed in entirety.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Facts of recognition;

A. The Korea Savings Bank Co., Ltd. (formerly: Korea Mutual Savings Bank Co., Ltd.; hereinafter “Korea Savings Bank”) completed the registration of creation of a mortgage over each real estate stated in the attached list Nos. 1 through 4 of September 30, 2009, as indicated in the I’s Schedule No. 1 to 4,900,000,000, in order to secure the loan claims against I.

B. The Korea Savings Bank applied for voluntary auction on each real estate listed in the separate sheet Nos. 1 through 4 to the J of the Incheon District Court, and the said court rendered a decision to commence voluntary auction on May 31, 2012.

The Defendants reported the lien in the above voluntary auction procedure.

C. On August 14, 2013, the Plaintiff voluntarily withdrawn an application for auction with respect to each real estate listed in paragraphs 1 and 4 of the attached Table (hereinafter “instant real estate”).

The Plaintiff filed an application for voluntary auction again with regard to the instant real estate with K in Incheon District Court, and the said court rendered a decision to commence voluntary auction on October 30, 2014.

The Defendants did not report the lien in the above voluntary auction procedure (hereinafter “instant auction procedure”).

【Ground of recognition】 The fact that there has been no dispute, Gap's 1 through 5 (including additional numbers), Eul's 1, the purport of the whole pleadings

2. The Plaintiff asserted that there is no secured debt of the Defendants concerning the instant real estate, and sought confirmation of the absence of a lien by the Defendants regarding the instant real estate.

As to this, the Defendants asserted that each lawsuit against the Defendants against the Plaintiff is unlawful as there is no benefit of confirmation.

The risk of a decrease due to a successful bid at a low price based on the report of a lien is an unstable legal status of the mortgagee in the auction procedure. Thus, the interests of the mortgagee who removes such apprehension cannot be considered as a simple economic interest. Therefore, the mortgagee has no right of retention.

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