A. On October 1, 2009, the Seoul Central District Court changed the final claim inspection judgment No. 2009Da4550 on October 1, 2009 as follows. It confirmed that rehabilitation security rights of the Plaintiff’s rehabilitation debtor company for a pair of automobile companies are KRW 8,865,395,000, and confirmed that rehabilitation claims of the Plaintiff’s rehabilitation debtor company for a pair of automobile companies are KRW 2,301,200,000.

B. The plaintiff's remaining main claims are dismissed.

2. The total costs of the lawsuit shall be four minutes, and one of them shall be borne by the plaintiff, and the remainder by the defendant respectively.

In the first place, the plaintiff's rehabilitation security right against both parties to rehabilitation claims is 11,166,595,00 won. In the second place, the plaintiff's rehabilitation claims against both parties to rehabilitation claims are 11,166,595,000 won (the part that is not recognized as a rehabilitation security right is not recognized as a rehabilitation claim).

2. Purport of appeal

The judgment of the court of first instance is modified as follows. The judgment is the same as the primary purport of the claim.

On July 11, 2008, the Plaintiff entered into a contract for the supply of crops (hereinafter referred to as “instant construction contract”) with a pair of automobiles company (hereinafter referred to as “a pair of automobiles”) to complete the construction work at the ○○○○○○○○○ Construction Work related to the development of the new car ○○○○○○○○○○○ located in Bridge-2 factory (hereinafter referred to as “new construction work”) for the total construction cost of KRW 11,292,00,000 for the total construction cost of KRW 11,292,00,000 for the new construction work and KRW 2,092,00,000 for the extended construction work, and value-added tax separately). According to the instant construction contract, the price for the new construction work is divided into a progress payment of KRW 140% (40%) for the completed construction work, KRW 250% (20%) for the remainder (25%) for the construction work (hereinafter referred to as “the remainder payment”).

While the Plaintiff completed the extension construction work under the instant construction contract and completed the new construction work, both vehicles were suffering from the shortage of funds, and filed an application for commencing the construction work on January 9, 2009 with the Seoul Central District Court 2009hap6. The Plaintiff notified on January 23, 2009 that “The Plaintiff shall temporarily suspend the construction work and exercise the right of retention against the construction site because no progress payment for the construction work has been made.” In addition, on February 6, 2009, the said court decided to commence the construction work on February 6, 2009 (a two vehicles after the decision to commence the rehabilitation procedure has been made).

Then, on February 17, 2009 under Article 119 Section 1 of the Debtor Rehabilitation and Bankruptcy Act, the Plaintiff notified the co-manager of the rehabilitation debtor to confirm whether the instant construction contract was implemented. Accordingly, on March 19, 2009, the co-manager of the rehabilitation debtor sent to the Plaintiff a notice of cancellation of the instant construction contract, and reached the Plaintiff on March 20, 2009.

The plaintiff asserted that the debtor has 11,387,200,000 won for the construction cost, and filed a final claim inspection judgment with the rehabilitation court around this point as a rehabilitation security right based on a lien and as a preliminary rehabilitation claim. Accordingly, the joint manager of the debtor's rehabilitation claims denies the whole rehabilitation security right reported by the plaintiff, and denied 90,397,200,00 won for the rehabilitation claim as excessive claim. Accordingly, the plaintiff filed a final claim inspection judgment with the Seoul Central District Court 2009,450 won for the above 11,387,200,200 won for the rehabilitation claim and for the above 11,387,200,200 won for the rehabilitation claim + 300,000 won for the rehabilitation claim and 10,397,200,000 won for the new construction work, 200,000 won for the rehabilitation claim and 300,000 won for the rehabilitation claim.

After receiving the instant decision on October 12, 2009, the Plaintiff filed the instant lawsuit against the co-manager of the rehabilitation debtor on November 9, 2009 (Article 171(1) of the Debtor Rehabilitation Act). The rehabilitation debtor was determined by the Seoul Central District Court on March 14, 201, and the Defendant taken over the instant lawsuit by the co-manager of the rehabilitation debtor.

Meanwhile, according to the result of the appraisal by Nonparty 3 of the first instance trial, until January 13, 2009 (including the Plaintiff’s written on January 13, 2009 as to the instant construction contract of this case) the amount equivalent to the completed value of the expanded construction work and the newly established construction work under the instant construction contract (including value-added tax) was 11,16,595,000 won, and the amount equivalent to the completed value of the newly established construction work of this case was 8,865,395,00 won.

[Reasons for Recognition] Unsatisfy, Gap's 1, 3, 7, 9, 17, 18, Eul's 9, Eul's appraisal result, non-party 3 of the first instance trial, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's ground for claim

According to the instant construction contract, the Plaintiff has a claim of KRW 11,166,595,00 in total for the said construction cost by completing a part of the newly established and expanded construction work in accordance with the instant construction contract. As a lien holder, the Plaintiff possessed the ○○○○ Dody (hereinafter “instant factory”) which is the object of the construction. Note 3)

Therefore, regarding the 11,166,595,00 won of the above construction cost, the confirmation of rehabilitation security right is sought in the first place, and the confirmation of rehabilitation claim is sought.

B. Defendant’s assertion

On January 9, 2009, the Plaintiff was unable to occupy the instant factory at the time of the commencement of rehabilitation procedures, as the rehabilitation debtor immediately suspended the construction of the instant factory, dismissed all human resources and equipment, and thereafter did not occupy the instant factory. In addition, the possession of the lien for recognition as rehabilitation security rights should be maintained even after the commencement of rehabilitation procedures. The Plaintiff already lost possession of the instant factory around April 16, 2009, which was submitted by the administrator of the rehabilitation debtor’s schedule.

The rehabilitation debtor, after filing an application for commencing rehabilitation procedures on January 12, 2009, received a preservative order from the rehabilitation court on January 12, 2009 that "no repayment or provision of security shall be made with respect to all monetary obligations arising from the causes before January 12, 2009," which was postponed due to the decision of preservative measure, and since the repayment to rehabilitation creditors is prohibited after the decision of preservative measure, the claim for construction price under the construction contract of this case was not yet due. Therefore, the right of retention of the plaintiff's assertion of the plaintiff did

The instant construction contract is a contract for the supply of crops. Since the Plaintiff constructed the instant factory using the Plaintiff’s materials and supplied them to the rehabilitation obligor, the debt subsidiary issued a acceptance certificate pursuant to Article 17(3) of the instant construction contract (Article 17(4) of the instant construction contract) and falls under the Plaintiff’s ownership before acquiring it. Therefore, the right of retention of the Plaintiff’s assertion did not meet the requirements that the occupied goods should be owned by the debtor or a

3. Judgment as to the main claim

(a) The time when the right of retention exists, which is recognized as rehabilitation security right;

The Debtor Rehabilitation and Bankruptcy Act provides that “a rehabilitation claim, etc. secured by a security right, etc. existing in the debtor’s property at the time the rehabilitation procedures commence shall be deemed a rehabilitation security right and 5). In other words, a rehabilitation security right is a claim secured by a security right, not a security right under the Civil Act or the Commercial Act, and the standard time for its existence is “the time the rehabilitation procedures commence”. This is understood in the same context as at the time the rehabilitation procedures commence, even though the Rehabilitation Procedure Act provides for the assessment of the debtor’s property value, etc. as at the time of the commencement of the rehabilitation procedures. As such, a rehabilitation security right is determined as at the time of the commencement of the rehabilitation procedures, so even if a security right under

Therefore, it is sufficient to determine whether the Plaintiff has a rehabilitation security right as a lien holder for the factory of this case at the time of commencing the rehabilitation procedure, and it is not necessary to consider whether the Plaintiff has lost a lien after the commencement of the rehabilitation procedure, barring any special circumstances.

B. Possession of the factory of this case

갑 4 내지 6호증, 갑 10호증의 1 내지 12, 갑 11, 12호증, 갑 13호증의 1 내지 12, 갑 14호증의 1 내지 10, 갑 15호증의 1, 2, 갑 16 내지 18, 22 내지 25호증, 갑 26, 27호증의 각 1, 2, 을 1, 6, 9, 12 내지 14호증, 을 15호증의 1 내지 3, 을 16호증의 1, 2의 각 기재와 영상, 제1심 증인 소외 4, 소외 5, 소외 6의 각 증언에 변론 전체의 취지를 종합하면, ① 쌍용자동차 평택공장은 그 전체를 쌍용자동차에서 경비인원을 상주시키면서 관리하고 있고 원칙적으로 그 구내에의 출입은 사전에 허가된 인원만 가능한 사실, ② 원고는 이 사건 공장 주변의 가설울타리 바깥에 이 사건 공사계약을 위한 현장사무소를 설치하고 현장사무소와 이 사건 공장 사이의 간이출입문을 통하여 출입하면서 공사를 진행하였으며, 간이출입문은 이를 주로 열어두고 있었고 그 열쇠를 원고 측이 보유하고 있었으므로 간이출입문을 통할 경우 원고의 직원들은 별다른 제지 없이 이 사건 공장으로 출입할 수 있었던 사실(그 후 회생채무자 측에서는 2009. 3.경 위 간이출입문을 시정하고 그 출입을 통제하였다), ③ 원고는 이 사건 공장 신설공사를 진행하던 중 쌍용자동차로부터 기성금을 제대로 지급받지 못하자 2009. 1. 14.경 일단 공사를 중단하기로 내부방침을 정하여 추가비용이 소요되는 자재의 신규투입과 공사일보의 기재 등을 중지하고 2009. 1. 23.경 위와 같이 쌍용자동차에 “공사를 잠정 중단하고 유치권을 행사하고자 한다.”는 통지를 한 사실, ④ 그런데 원고는 이후로도 현장사무소에 3명 내지 5명의 인력을 상주시키고 이 사건 공장 내에 공사장비 일부를 남겨두었으며, 공사일정상 2009. 1. 10.경부터 이 사건 공장 내에 설치될 예정이었던 쌍용자동차의 기계설비를 빗물이나 외부 기온으로부터 보호할 필요가 있었기 때문에 2009. 3.경까지 하도급업체 등과 함께 이 사건 공장 외벽의 유리창 및 자동출입문 공사, 공장 내부의 천정 우수관 공사, 철골 호이스트빔 설치공사 등을 계속 진행하였던 사실, ⑤ 이 사건 공장은 연면적 9,883.03㎡, 둘레 길이 400m 이상의 규모로서 13개의 출입문이 있는데 원고는 2009. 1. 29.경부터 2009. 5. 8.경까지 그 중 주출입구에 해당하는 서쪽 출입구 4 - 5곳에 ‘이 공장은 원고가 유치권을 행사하고 있는 장소로서 원고의 허락 없이는 출입을 엄금함’이라는 내용의 팻말을 세워 두었는데(동쪽 출입구는 이 사건 공장 옆의 도장공장과 가까이 붙어 있고, 남쪽 출입구는 펜스가 있는 쪽이어서 주된 출입은 서쪽 출입구를 통하여 이루어졌다), 위 팻말은 이후 발생한 쌍용자동차의 노동쟁의 과정에서 철거된 사실을 각 인정할 수 있다.

"Possession" refers to an objective relationship that shows that an article belongs to a factual control of a person under social norms, and to have de facto control, it does not necessarily mean that an article is physically and practically controlled, but should be determined in conformity with social norms in view of the time, space and principal relation with the article, possibility of exclusion from others' control, etc. (see Supreme Court Decision 2009Da39530, Sept. 24, 2009, etc.). Furthermore, a contractor for new construction of a building may, in principle, have a lien on a building under construction payment claim (see Supreme Court Decision 95Da16202, Sept. 15, 195, etc.).

위 인정 사실에서 본 바와 같이 원고는 회생절차개시결정 전인 2009. 1. 14.경 일단 공사를 중단하기로 방침을 세우고 추가비용이 소요되는 공사는 자재의 신규투입 등을 중지하였고, 유치권을 행사하기로 한 다음에도 이 사건 공장에 회생채무자 측을 포함한 외부인의 출입을 봉쇄한 것은 아니었으며, 쌍용자동차 평택공장 구내의 출입 등 관리는 회생채무자 측에 의하여 계속되었다. 그러나 원고가 위와 같이 공사를 중단하기로 방침을 세우기 전까지 이 사건 공사계약의 공사대상인 이 사건 공장은 공사를 계속하는 원고의 점유 하에 있었다고 볼 수 있는바, 이후 회생절차개시결정 전에 원고가 그 점유를 상실하였는지에 관하여 보건대, 원고가 회생채무자의 관리인들에게 유치권을 행사할 것임을 알리고 기존의 공사장비와 자재 및 일부 인력을 유지하면서 2009. 3.경까지 추가보완공사를 계속하였으며, 2009. 1. 29.경부터는 회생채무자 측과의 분쟁에 대비하여 유치권 행사 중임을 명시하는 팻말을 설치한 점, 회생채무자 측이 평택공장 구내의 출입 등을 관리하고 있었다고 하더라도, 회생채무자 측은 시공사인 원고로부터 이 사건 공장을 인수한 바 없고 유치권 행사 통보를 받고도 원고에게 이의를 제기하고 퇴거를 요구하거나 직접 팻말을 제거하는 등의 조치를 전혀 취하지 아니하였으며, 원고의 직원들은 위 추가공사가 계속되는 동안 위 간이출입문을 종전처럼 사용하여 출입할 수 있었던 점, 원고가 이 사건 공장에 대한 외부인의 출입을 봉쇄하는 조치를 취하지는 아니하였으나 이 사건 공장은 쌍용자동차 평택공장 구내에 있어 외부인의 침입 가능성이 적었고 추가공사가 계속되고 있는 이 사건 공장에 대하여 회생채무자 측이 점유를 침탈할 가능성도 생각하기 어려운 상황이었던 점, 한편 원고로서는 피고가 이 사건 공사계약의 계속적인 이행을 선택할 경우 원고의 공사대금채권이 채무자회생법 제179조 제1항 제7호 에 의하여 공익채권으로 인정되어 이를 다른 채권에 우선하여 변제받을 수 있는 유리한 위치에 서게 주7) 되므로, 비록 공사를 일시 중단하기로 방침을 세웠다고 하더라도 쌍용자동차 측이 이미 회생절차개시신청을 한 상태에서 그 즉시 장비와 인력을 철수시키기보다는 최대한 공사계약을 유지하기 위하여 노력하였을 것으로 보이는 점 등을 종합하여 보면, 원고는 적어도 회생절차개시결정 당시까지는 이 사건 공장에 대한 종전의 점유를 계속 유지하고 있었다고 봄이 상당하다.

(c) Arrival of maturity;

As seen earlier, both automobiles were in arrears in paying the progress payment of the instant construction contract to the Plaintiff before the decision on commencing the rehabilitation procedure was made, and on the other hand, until January 13, 2009, the amount equivalent to the maturity payment amount is appraised to KRW 11,166,595,000, and thus, the claim for construction payment equivalent to the above amount was due at the time of the decision on commencing the rehabilitation procedure. Furthermore, on January 12, 2009, the Defendant’s assertion on the ground that the preservative measure was rendered on the ground that there was a decision on preservative measure, which prohibits the debtor’s repayment, does not prevent the effect of the due date. Therefore, the Defendant’s assertion on the ground

D. Ownership of the factory of this case

In general, a person who constructed a building in his/her own effort and materials acquires the ownership of the building at the original time, but if it can be deemed that the ownership of the building completed between the contractor and the contractor is attributed to the contractor in the contract, the ownership of the building shall be reverted to the contractor in the original condition (see, e.g., Supreme Court Decision 97Da8601, May 30, 1997). In the case of a building not completed, if it has a form and structure that can be viewed as an independent building under social norms, the original owner acquires the ownership of the building at the original stage (see, e.g., Supreme Court Decision 2000Da16350, Apr. 26, 2002).

The factory of this case had the form and structure that can be seen as an independent building by columns, roof, etc. at the time of the decision to commence the construction work. Meanwhile, Article 17(2) of the Construction Contract of this case provides that the time of transfer of ownership of the object of the contract of this case is “the time when two automobiles pay advance payment to the plaintiff.” The construction contract of this case does not provide for or have paid such advance payment, and as far as possible, the above provision appears to the purport for the front equipment at the time when the ownership of the object of the contract belongs to both automobiles. Since the factory of this case was constructed for the purpose of the ○○○○○○’s new automobile for the new construction of two cars, it is practically impossible for a third party other than the debtor to dispose of or use it. The construction cost of the construction contract of this case was paid by the debtor after the cancellation of the construction contract of this case. In full view of the circumstances such as the conclusion of the construction contract of this case and the conclusion of the construction contract of this case between the two companies around December 2, 2009.

Therefore, the factory of this case, which was constructed as an independent building at the time of the decision on commencing the rehabilitation procedure, is deemed to have already acquired the ownership of both automobiles.

(e) Scope of rehabilitation security rights;

If a right of retention satisfies certain requirements, it is legally constituted a statutory security right and does not require a separate declaration of intent in its establishment (as seen earlier, the Plaintiff notified the intention to exercise the right of retention prior to the commencement of the rehabilitation procedure). Since the Plaintiff occupied the factory of this case, which became due under the construction contract of this case and became due according to the construction contract of this case at the time of the commencement of the rehabilitation procedure, the Plaintiff held the right of retention for the factory of this case at the time of the commencement of the rehabilitation procedure for the said claim

Furthermore, with respect to the scope of the Plaintiff’s rehabilitation security right based on the above lien, Article 141(1) of the Debtor Rehabilitation Act provides that the base time for the existence of such rehabilitation security right shall be “at the time of commencement of rehabilitation procedures”, while Article 141(4) provides that a rehabilitation security right may be exercised only for the value of the subject matter of the security right out of the amount of the claim of the rehabilitation secured creditor (where the claim amount of the rehabilitation security right is less than the value of the subject matter of the security right, the rehabilitation security right may be exercised within the scope of the claim amount as a matter of course). As such, the Plaintiff’s rehabilitation security right based on the above lien shall be deemed to be established within the scope equivalent

As seen earlier, since the amount equivalent to the beginning value of the instant new factory until January 13, 2009 exceeds KRW 8,865,395,00, the factory of this case at the time of the commencement of the rehabilitation procedure can be presumed to have maintained at least its value. Therefore, the amount equivalent to KRW 8,865,395,00 out of the above construction cost claim 11,166,595,000 can be deemed to have been established as rehabilitation security right. However, there is no evidence as to the fact that the amount exceeds KRW 8,865,395,000 at the time of the commencement of the rehabilitation procedure for the factory of this case (no evidence exists as to the fact that the value of the factory of this case as the final completion of the rehabilitation procedure exceeds KRW 8,865,395,00).

Therefore, the Plaintiff’s claim for construction cost under the instant construction contract should be accepted as a rehabilitation security right only for KRW 8,865,395,000. Therefore, the Plaintiff’s primary claim is reasonable within the scope of recognition as above, and the remainder is without merit.

4. Judgment on the conjunctive claim

The remainder of KRW 2,301,200,000, excluding KRW 8,865,395,000, which is recognized as rehabilitation security right, out of KRW 11,166,59,000, under the instant construction contract, becomes a rehabilitation claim (Article 141(4) of the Debtor Rehabilitation Act). Meanwhile, the rehabilitation obligor’s joint managers have agreed to KRW 10,397,20,00 as a rehabilitation claim, but this was not confirmed by the Plaintiff’s objection). Therefore, the Plaintiff’s preliminary claim seeking confirmation of the rehabilitation claim regarding KRW 2,301,200,000 is reasonable.

5. Conclusion

Thus, the plaintiff's main claim shall be accepted within the scope of the above recognition, and the plaintiff's main claim shall be dismissed and dismissed, and the judgment of the court of first instance shall be modified differently, and it is so decided as per Disposition.

Judges Lee Do-won (Presiding Judge)

1) (1) When the debtor and his other party with respect to a bilateral contract have not yet completed the implementation of the bilateral contract at the time rehabilitation procedures commence, the custodian may rescind or terminate the bilateral contract, or require the debtor to perform his/her obligations and to fulfill the other party's obligations.

2) Although the Plaintiff did not clearly state whether the right of retention is a civil lien or a commercial lien, it appears to the purport that both the two claims are asserted. The difference between a civil lien and a commercial lien is that in the case of a commercial lien, the relationship between the secured claim and the object does not require any connection between the secured claim and the object, and that the possession of the Plaintiff’s factory in the instant construction contract and the construction work thereof should be obtained through commercial activities between merchants. Since there is no particular dispute between the Plaintiff and the debtor as a merchant in the instant construction contract and the Plaintiff’s possession of the instant plant in the construction work, the relationship between the secured claim and the object does not need to be followed. Meanwhile, the Defendant does not dispute over the special elements of a civil lien or commercial lien, and does not dispute only the general elements of the establishment of the right of retention, and thus, it is determined without distinguishing the civil lien

3) Article 320 (Contents of Right of Retention) (1) of the Civil Act (1) A person who possesses articles or securities of another person shall have the right to retain such articles or securities until the repayment thereof is made, in cases where a claim created in respect of such articles or securities has become due. In cases where a claim arising from commercial activities between merchants under Article 58 (Commercial Right of Retention) of the Commercial Act has become due, the obligee may, until repayment is made, retain things or securities owned by the obligor due to commercial activities

4) Article 17(3) of the instant construction contract: “The time of acquisition of the subject matter of the contract is when both automobiles are issued to the Plaintiff, and the time of transfer of ownership is when both automobiles paid advance to the Plaintiff.”

(5) Article 141 of the Debtor Rehabilitation Act (Rights of Rehabilitation Secured Creditors) ① Property claims against any person other than the debtor who has arisen prior to the commencement of rehabilitation procedures, which are secured by any lien, pledge, mortgage, security right for transfer by means of security, provisional registration right, right to lease on a deposit basis, or preferential right existing on the debtor’s property at the time rehabilitation procedures commence, shall be considered rehabilitation security rights: Provided, That with respect to any claim for damages arising from interest or non-performance of obligation or for penalty, such claims shall be limited to those arising from the commencement of rehabilitation procedures prior to the commencement of rehabilitation procedures until the date of the commencement of rehabilitation procedures.

(6) The custodian under Article 90 of the Debtor Rehabilitation Act shall assess the value of all the properties belonging to the debtor at the time that the rehabilitation procedures commence, without delay, after his/her inauguration. The custodian under Article 91 shall, without delay, prepare and submit to the court the debtor’s inventory and balance sheet at the time that the rehabilitation procedures commence.

(7) Article 179 (Claims that Become Public-Interest Claims) (1) of the Debtor Rehabilitation Act refers to claims falling under any of the following subparagraphs, which are common-interest claims. 7. When any custodian performs his/her obligations pursuant to Article 119 (1), Article 180 (Repayment, etc. of Public-Interest Claims) of the other party’s claims shall be met from time to time without undergoing rehabilitation procedures.

8) When any custodian, rehabilitation creditor, rehabilitation secured creditor, shareholder, or equity right holder raises an objection on the inspection period or on the special inspection date, the details of the following rights and the amount of voting rights shall be determined and the preferential right for the reported rehabilitation claims and rehabilitation security rights shall be determined.