제3자이의
The appeal is dismissed.
The costs of appeal are assessed against the Plaintiff.
The grounds of appeal are examined.
1. Whether an floating structure-type barge falls under the category of a ship eligible for registration;
(a) The compulsory execution against a vessel that can be registered shall be governed by the provisions concerning the compulsory auction of immovables (main sentence of Article 172 of the Civil Execution Act). Article 2 of the ship technique provides that “this Act shall apply to a flag ship of 20 gross tonnage or more, sailing ship, and barge of 100 gross tonnage or more: Provided, That this Act shall not apply to a barge under the main sentence of subparagraph 4 of Article 26 of the Ship Act;
The main sentence of Article 26 subparagraph 4 of the Ship Act stipulates that “a barge installed by fixing it on the water to use for mooring ships, storage, etc. among barges with a gross tonnage of at least 20 tons shall be excluded from floating structure-type barges, such as floating hotels, floating restaurants, and floating performance halls, which are approved to occupy and use or to use under Article 8 of the Public Waters Management and Reclamation Act, or which are approved to occupy and use under Article 33 of the River Act, shall be excluded.”
The proviso of Article 26 (4) of the Ship Act is to include floating structure-type barges such as floating hotels, floating restaurants, and floating performance halls in order to promote the installation of floating structures due to the increase in demand for water-related leisure activities, and to allow registration in accordance with the Ship Act.
In full view of the language, purport, etc. of the proviso of Article 26 subparag. 4 of the Ship Act, a floating hotel, a floating restaurant, or a water performance hall under the proviso of Article 26 subparag. 4 of the Ship Act shall be deemed as an example of the type of floating structure-type floating barge.
B. The lower court rejected the Plaintiff’s claim seeking the denial of voluntary auction on the instant vessel for the following reasons.
(1) D and E have registered the preservation of ownership on July 29, 2005 by 1/2 shares on the instant vessel, but they had registered the preservation of ownership on January 10, 2007.