2. As to each real estate listed in the separate sheet, the Defendant shall implement the procedures for registering the establishment of a mortgage with the debtor as the ground for exercising the right to demand the settlement of mortgage on April 1, 2013, and the amount of the claims KRW 1,600,000,000, and the debtor.

3. All costs of the lawsuit shall be borne by the defendant.

A. Case summary

The instant case asserted that the Plaintiff, who was charged with the structural construction of the instant building from the Defendant, was entitled to claim the creation of mortgage against the instant building currently owned by the Defendant as the secured claim pursuant to Article 666 of the Civil Act, and sought the implementation of the procedures for the establishment of mortgage against the said building.

The first instance court dismissed the plaintiff's claim, and the plaintiff appealed against it.

B. Presumed factual basis

The reasoning for this Court’s explanation is that it is identical to the entry of “1. Recognizing facts” in the judgment of the court of first instance, and thus, cites this part by the main text of Article 420 of the

2. Determination as to the cause of action

According to the "fact-finding," the plaintiff has a claim for remuneration of KRW 1,602,117,200 against the defendant, and the defendant constructed the building of this case and acquired the ownership of the building of this case to the extent that it can be seen as an independent building in light of social norms from the structure and form around July 28, 2003 to the extent that it can be seen as an independent building in light of social norms. As such, the plaintiff of the new construction of the building of this case can claim for the creation of mortgage against the building of this case to secure the defendant, the subcontractor, who is the subcontractor, for remuneration of KRW 1,602,117,200,000, which shall be claimed by the plaintiff pursuant to Article 666 of the Civil Act. The fact that a copy of the complaint of this case containing the plaintiff's expression of intent to exercise the right to demand the creation of mortgage, is obvious in the record.

Therefore, barring any special circumstance, the Defendant is obligated to implement the registration procedure for establishing a mortgage with the Defendant as the Defendant on April 1, 2013 on the ground of the exercise of the right to claim the creation of mortgage as of April 1, 2013.

3. Determination on the defense, etc.

A. The parties' assertion

1) Defendant

The Plaintiff’s right to demand mortgage falls under a claim against a contractor for construction, and thus becomes subject to the three-year extinctive prescription pursuant to Article 163 subparag. 3 of the Civil Act, or the five-year extinctive prescription is applicable to a commercial bond. Even though the Plaintiff was able to immediately exercise the right to demand mortgage from the time when remuneration claim occurred, the Plaintiff filed the instant lawsuit on March 26, 201 after the lapse of five years from the beginning date of July 28, 2003, which was the date of completion of the instant building, even though the Plaintiff was able to exercise the right to demand mortgage immediately from the time when remuneration claim was created, and even when the commencement date of the instant building was the starting date of July 28, 2003, the Plaintiff’s right to demand

2) Plaintiff

The Plaintiff was unable to objectively understand the fact that the right to claim mortgage has occurred against the Defendant before the judgment that the Defendant acquired the ownership of the instant building became final and conclusive in the lawsuit for the registration of cancellation of ownership preservation in the name of the initial owner of the instant building site. As such, the extinctive prescription of the Plaintiff’s right to claim mortgage has not yet expired from the date when the said judgment became final and conclusive, and the

B. Determination

1) Extinctive prescription period

Article 163 Subparag. 3 of the Civil Act provides that “a claim that takes place for the short-term extinctive prescription of three years and refers to a claim that pertains to the construction work of a contractor.” The term “claim” includes not only the claim for the construction work of contracted construction, but also the claim incidental to the construction work (see Supreme Court Decision 2008Da41451, Nov. 12, 2009). The right to claim for mortgage established on a contractor of real estate construction pursuant to Article 666 of the Civil Act is a claim that guarantees a contractor’s remuneration claim and is subordinate to a remuneration claim. Thus, the period of extinctive prescription falls under a claim that pertains to the construction work of a contractor under Article 163 Subparag. 3 of the Civil Act.

2) The starting point for the statute of limitations

A) Legal principles

Although the running of the extinctive prescription period is not an obstacle to the running of the extinctive prescription period even if the pertinent claim occurred from the time when the pertinent claim was established and was unaware of the existence or occurrence of a right (see, e.g., Supreme Court Decisions 91Da32053, Mar. 31, 1992; 91Da6427, 7371, Feb. 11, 2003). However, even if the claimant was unaware of the existence of a right without negligence, deeming that the extinctive prescription run immediately from the time when the claim is established does not accord with the definition and equity, nor does it coincide with the reason for the existence of the extinctive prescription system. Therefore, it is reasonable to view that the extinctive prescription period ought to run from the time when the claim becomes objectively known (see, e.g., Supreme Court Decisions 2010Da78470, May 26, 2011; 99Da6427,7371, Feb.

B) the facts of recognition

The following facts can be acknowledged in full view of the facts in the “full-time fact”, the statements in the evidence Nos. 6 and 7 (including each number), and the overall purport of the pleadings.

(1) Change of the owner and contractor during the construction process of the instant building

In the process of the construction of the instant building, the owner and the contractor were changed several times as follows.

① At the time of September 2002, Ecell General Construction Co., Ltd. entered into a contract for new construction of the instant building with the owner of shares (hereinafter “the first owner of shares in the land”) in Seocho-gu Seoul Metropolitan Government ( Address 1 omitted) 1,646m2 (hereinafter “instant site”) (hereinafter “instant site”) (hereinafter “the first owner of shares in the site”), which is the site of the instant building, in the name of the owner of shares in the initial site. The construction permit for new construction was the name of the owner of shares in the ownership in the instant site.

② At the time of April 2003, 200, the Defendant agreed that the instant building owner and the Defendant continued to undertake the instant building construction, which was the date of the bankruptcy and the suspension of the instant construction. However, the Defendant could no longer perform the construction after completion of the structural construction around July 28, 2003. Furthermore, on September 16, 2004, the Defendant paid to the owners of the building sites by December 20, 2004 the land share to purchase the land by paying the land price and the construction cost, etc., and purchased the share of the land by December 20, 204, but did not pay the said amount by the said deadline.

③ At the time of January 10, 2005, the owners of the instant housing site shares entered into a contract on the remaining construction before the Defendant completed the construction work from January 10, 2005 to June 2007. At the time of January 24, 2005, the owners of the instant housing site shares changed the name of the owner of the instant new building site shares from the owner of the initial housing site shares.

(2) Registration of ownership preservation in the name of the first owner of ownership shares;

After receiving a subcontract for the construction of the building in this case, the Plaintiff filed an application for provisional attachment against the owner of the first site shares in this case, who was the title holder at the time of the construction permission, and received a provisional attachment decision as Seoul Central District Court 2005Kadan4352 around August 29, 2005, by asserting that there was a claim for the construction cost against the owner of the first site shares in this case as the preserved right. Upon the request of the court for provisional attachment registration as a result of the provisional attachment decision, the registration of ownership preservation was completed in the future of the first site shares owner as Seoul Central District Court No. 79305, Aug. 30, 2005.

(3) Progress of the first instance trial in the relevant case

At the time of 2005, the owners of the instant housing site filed a lawsuit with the Seoul Central District Court on December 1, 2006 against the owners of the first housing site in the Seoul Central District Court for the claim for cancellation of registration of ownership preservation (hereinafter “related cases”) by asserting that they completed the instant building and acquired the ownership in original condition, and filed a lawsuit against the owners of the first housing site on December 1, 2006.

On July 28, 2003, the court of first instance rendered a decision that the owner of the instant site shares as of July 28, 2003, at the time of the construction work on the instant building, the Defendant, as the owner of the instant building, was an independent real estate, and the Defendant, as at the time of the construction work on the instant building, concluded a contract for the construction of the instant building with the intent to assign ownership to the owner of the said owner as the owner of the instant building or the owner of the instant building, and that the owner of the instant site shares as of July 28, 2003 had acquired the instant building at the time of the original acquisition of the instant building by the owner of the said ownership shares.

(4) Progress of the appeal and the appeal of the related case

On March 3, 2009, the Seoul High Court (Seoul High Court 2008Na17801) filed an appeal against the judgment of the first instance court of the relevant case, and the Plaintiff participated in the said lawsuit as an independent party, Seoul High Court 2009Na22282 on March 3, 2009, and the Defendant sought implementation of the procedure for cancellation of registration of initial ownership in subrogation of the Defendant.

The appellate court held on July 28, 2003 that the owner of the building site shares is a joint owner, and it is anticipated that he will acquire the ownership of a specific part after the completion of the building, it is insufficient to view that there was an agreement between the owner of the building site shares who is the contractor and the defendant who is the contractor to vest in the subcontractor the ownership of the building completed by the contractor. On the ground that the contractor completed the building in this case at his own effort and cost and at his own expense and at the same time paid the construction cost from the right holders who purchased the building in this case, and the ownership of the building in this case was to transfer the ownership of a specific part that was sold to him to him at the same time, and that the owner of the building in this case was to acquire the ownership of the building in this case at the request of the plaintiff as the independent party on June 25, 2009. The above

C) Determination

(1) A contractor of real estate construction may exercise a right to demand mortgage under Article 666 of the Civil Act against a contractor, who is the owner of real estate for the purpose of construction, upon the formation of a claim for remuneration. As seen earlier, the Plaintiff’s claim for remuneration against the Defendant was concluded at the time of entering into a subcontract with the Defendant during the construction of the instant building, around April 2003, and the Defendant acquired the ownership of the instant building, which was an independent building under social norms, even around July 28, 2003.

Therefore, since the Plaintiff was able to exercise the right to demand the establishment of mortgage on the instant building from July 28, 2003 to the Defendant, barring any special circumstance, the Plaintiff’s right to demand the establishment of mortgage against the Defendant runs three years from July 28, 2003, barring any special circumstance.

(2) However, in light of the above facts, the Plaintiff was unable to objectively understand “the fact that the Defendant acquired the ownership of the instant building,” which is the requirement for the right to demand mortgage against the Defendant, before the judgment becomes final and conclusive in the relevant case, and it is reasonable to deem that the Defendant did not have any negligence in failing to know.

(A) The contractor for the construction of the instant building has been changed from cell integrated Construction Co., Ltd. to the Defendant and Gyeongwon Construction Co., Ltd. twice, and the ownership of the instant building site was transferred several times along with the instant right to share. As such, as to the owner and the contractor who completed the instant building due to the reason that the owner and the contractor frequently changed, there was an urgent conflict between the parties related to the construction of the instant building as to the ownership of the instant building, and thus, it was difficult to find out who was the owner and the contractor of the instant building, as well as the Plaintiff, and any person related to the construction of the instant building, has acquired the ownership of the instant building before the judgment was rendered in the relevant case.

(B) Even if the contractor completed a building with his own effort and materials in the contract, if it appears that the contractor and the contractor agreed to vest the ownership of the completed building in the name of the contractor, such as obtaining a construction permit and obtaining a registration of preservation of ownership, the ownership of the building shall be reverted to the contractor in the original condition (see, e.g., Supreme Court Decisions 89Meu1884, Apr. 24, 1990; 91Da34790, Mar. 27, 1992). Unless there are special circumstances, the subcontractor’s intent is not considered. Therefore, it is determined whether the Plaintiff may exercise the right to demand the settlement of mortgage against the Defendant according to the internal relationship between the contractor and the contractor, such as the contractor and the contractor. In this case, the Plaintiff could not be found that the Plaintiff was aware that there was any agreement between the Defendant and the contractor on the ownership of the building in the instant case, and therefore, the Plaintiff did not have known the contents of the agreement with the contractor until the fact was found in the relevant case.

(C) From a third party who was unaware of the legal relationship between the contractor and the contractor, there is sufficient room to view that the nominal owner of the building permit acquired the ownership of the building, and the Plaintiff was also aware that the first land owner, who was the nominal owner of the original building permit, acquired the ownership of the building of this case, provisionally seized the building of this case on the premise that the ownership of the building of this case was acquired, and accordingly, the registration of ownership preservation was made in the name of the initial land owner, and that the first land owner, not the

(D) In the relevant case, the court of first instance deemed that the contractor agreed to acquire the ownership of the building of this case and determined that the owner of the ownership in the site at the time of completion of the building of this case acquired the ownership of the building of this case. In light of the circumstances, the Plaintiff, not a legal expert, could not be objectively known that the Defendant acquired the ownership of the building of this case before the judgment of the above appellate court became final and conclusive.

(3) Sub-decisions

Therefore, it is reasonable to view that the Plaintiff’s right to demand mortgage against the Defendant is not the time when the Defendant acquired ownership of the building of this case, but the judgment becomes final and conclusive in the relevant case, and that the extinctive prescription is in progress from August 25, 201 when the Plaintiff objectively known the Defendant’s acquisition of ownership of the building of this case, which is the requirement for the Plaintiff’s right to demand mortgage. The fact that the instant lawsuit was filed on March 26, 201, which was not later than three years from August 25, 2011, is apparent in the record.

Therefore, the plaintiff's argument is reasonable, and the defendant's defense of extinctive prescription is without merit.

4. Conclusion

If so, the plaintiff's claim is reasonable, and the judgment of the court of first instance which has different conclusions is unfair, and it is so decided as per Disposition by cancelling it and accepting the plaintiff's claim.

[Attachment]

Judges Gohn Jin (Presiding Judge)