[건물명도등][공2012상,4]
[1] Where a third party acquires a right of retention due to the transfer of possession by the debtor after a provisional attachment registration has been made on the real estate (negative)
[2] In a case where, after the commencement of an auction to exercise a security right to land, a provisional attachment registration has been made on the above ground after the commencement of an auction to exercise a security right to land, Gap acquired a lien with the claim for construction cost as the secured claim, which was transferred to Eul Co., Ltd., the debtor Eul acquired as the security right to the relevant building, and Byung acquired a compulsory auction for the building after the commencement of a compulsory auction for the building thereafter, Byung may claim a lien
[1] If a provisional attachment registration on real estate has been made, it can not be set up against the creditor of provisional attachment even if the debtor's act of disposal on the real estate. Here, the act of disposal refers to the act of transferring the real estate in question or establishing the real right to use the real estate in question, and barring special circumstances, it does not constitute an act of disposal such as transfer of possession: Provided, That in a case where the debtor takes possession of the real estate after the seizure became effective after the entry registration of the decision of commencement of auction has been made and the debtor takes possession of the real estate in question, it constitutes an act of disposal. However, if the debtor takes possession of the real estate in question after the completion of the registration of the decision of commencement of auction, and it can be set up against the creditor of the lien acquired by a third party by transferring the possession of the real estate in question after the seizure became effective, it is reasonable to view that the buyer in the auction procedure would seriously undermine the fairness and trust in the auction procedure by taking over the burden of the right not revealed in a report of sale or specification of the goods, etc., and thus, it is reasonable to deem that the creditor's disposal of the real disposal of the real property.
[2] In a case where: (a) after an auction to exercise a security right to land was commenced, a provisional attachment registration has been made on the relevant ground building; (b) Party A acquired a lien with the claim for construction cost as the secured claim upon the transfer of possession of the building to Party B, the debtor, and thereafter a compulsory auction for the building was commenced; and (c) Party C was awarded a successful bid for land and a building, the case holding that Party B may claim a lien on the building since Party B’s transfer of possession of the building to Party A does not constitute a disposal act, and it does not conflict with the effect of the prohibition of provisional attachment, on the grounds that Party B’
[1] Article 320 of the Civil Act, Articles 83(4), 91(5), and 92(1) of the Civil Execution Act / [2] Article 320 of the Civil Act, Articles 83(4), 91(5), and 92(1) of the Civil Execution Act
[1] Supreme Court Decision 2005Da22688 decided Aug. 19, 2005 (Gong2005Ha, 1503) Supreme Court Decision 2006Da22050 decided Aug. 25, 2006 (Gong2007Sang, 263)
News Orccom Co., Ltd. (Law Firm KEL, Attorneys Cheong-dam et al., Counsel for the defendant-appellant)
Samil Co., Ltd. (Law Firm Lee & Lee LLC, Attorneys Lee Jong-ho et al., Counsel for the defendant-appellant)
Busan High Court Decision 2008Na12385 decided Feb. 4, 2009
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined.
1. On the first to fourth grounds
This part of the ground of appeal is just an assertion that the plaintiff did not assert until the closing of argument in the court of final appeal, or a fact-finding court, which is a fact-finding court, on the selection of evidence and fact-finding, which belong to the exclusive authority of the court below, and thus
2. On the fifth ground for appeal
A. On or around April 2005, the lower court determined that: (a) on or around July 2005, the voluntary auction of each of the lands listed in Tables 1 and 1 (2) as indicated in the judgment of the lower court was commenced; (b) on or around July 2005, the voluntary auction of each of the lands listed in Tables 3 and 4 as indicated in the same List (hereinafter “each of the above lands”); and (c) on September 21, 2005, the provisional attachment registration was completed on or around September 21, 2005; and (d) on or around December 2005, the compulsory auction of the above buildings was commenced; and (d) on or around October 2005, the Defendant acquired a lien with the Defendant’s claim for construction price as the secured claim on each of the above lands; and (e) on or after being awarded a successful auction of each of the above lands and the Defendant’s transfer of ownership to each of the above lands.
In light of the relevant legal principles and records, the above judgment of the court below is just and there is no error in the misapprehension of legal principles as to the effect of prohibition of attachment.
B. If a provisional attachment registration on real estate has been made, it can not be set up against the creditor of provisional attachment even if the debtor's act of disposal on the real estate. Here, the act of disposal refers to the act of transferring the real estate in question or establishing real rights, security rights, etc., and it does not constitute an act of fact such as transfer of possession, unless there
However, in a case where the debtor acquires the right of retention by transferring the possession of the real estate to a third party after the seizure takes effect upon the completion of the registration of the entry in the decision on commencement of auction, the transfer of such possession constitutes a disposal act (see Supreme Court Decisions 2005Da22688, Aug. 19, 2005; 2006Da22050, Aug. 25, 2006). This is a case where the debtor can oppose the creditor holding the right of retention acquired by the third party by transferring the possession of the real estate after the completion of the registration of the decision on commencement of auction after the entry in the decision on commencement of auction became effective, if the debtor acquires the burden of the right of retention not revealed in the report on the status quo or the sale specification, etc. of the real estate at the auction procedure, thereby significantly impairing the fairness and trust in the auction procedure, and where the applicant for the right of retention becomes aware of the above disposal act through the report on the right of retention, etc., causing the creditor's prompt and adequate disposal of the property.
Therefore, under the circumstances where a provisional attachment registration has been made on real estate, but the real sale procedure has not been carried out, even if a third party acquires a lien due to the transfer of possession by the debtor, it cannot be viewed as a disposal act.
The court below erred in failing to make any decision on the plaintiff's assertion that, after the registration of provisional seizure was made on the building of this case, U.S., the debtor's transfer of possession to the defendant constitutes an act of disposal, and thus, the defendant cannot claim the right of retention against the plaintiff who purchased the building of this case in the auction procedure. However, as long as the transfer of possession does not constitute an act of disposal and does not conflict with the effect of prohibition of provisional seizure, the court below's conclusion that the defendant can claim the right of retention against the building of this case is just, and there is no error of law by misunderstanding the legal principles on the effect of prohibition of provisional seizure as to the prohibition of disposal
3. On the sixth ground for appeal
The court below held that since the building of this case was newly constructed after the registration of the establishment of a right to collateral security on each of the land of this case and the legal superficies on each of the land of this case were not established and thus the defendant cannot be permitted to exercise a right to collateral security on each of the land of this case, the defendant's assertion that the right to collateral security on the building of this case cannot be denied, as long as the building of this case was awarded a successful bid to the plaintiff with each of the land of this case and the problem of legal superficies arises, the defendant's right to retention cannot be denied only for the reasons as alleged by the plaintiff. The judgment of the court below
4. On the seventh ground for appeal
The court below is just in holding that the defendant applied for a compulsory auction against the building of this case, and it cannot be deemed that he could not exercise a right of retention against the building of this case or that he could not waive it, and there is no error in the misapprehension of legal principles as to the extinction or renunciation of a right of retention
5. Conclusion
Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yang Chang-soo (Presiding Justice)