[제3자이의][집36(1)민,63;공1989.1.1.(839),17]
(a) Whether the legal personality of the shipping company established for the sake of convenience and the shipping company that is an actual owner is identical;
B. Whether provisional seizure of a ship based on a claim with a maritime lien is possible (negative)
(a) Although Gap, Eul, and Byung become a separate company in external form, Gap, and Byung are the shipping company, Gap and Eul are the companies established formally for the convenience of shipping enterprises in a separate country with the actual owner of the ship's own country, and have the ship in its name (so-called convenience, (e.g. convenience), and if the office and management are the same (e.g., office and management), it is not permissible to give the claims that Byung is a company with a legal personality separate from Gap to avoid the application of the law, in order to avoid the application of the law, it is against the principle of good faith and to abuse its legal personality.
B. The creditor with a maritime lien can exercise the right of auction against the ship without the name of debt, regardless of the shipowner’s change, so the creditor need not make a provisional seizure of the ship to preserve the claim.
A. Articles 2 and 34 of the Civil Act; Article 861 of the Commercial Act; Article 697 of the Civil Procedure Act
B. Supreme Court Decision 80Da2318 Delivered on July 13, 1982
[Defendant, Appellant] Roympid Lloba, Attorney Park So-young, Counsel for defendant-appellant, Counsel for defendant-appellant-appellant-appellant)
Hyundai Spoon Line Co., Ltd. and one other, Counsel for the defendant-appellant-appellee-appellant-appellee-appellant
Daegu High Court Decision 86Na1100 delivered on June 4, 1987
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
1. According to the reasoning of the judgment below, the court below found Defendant 1's non-party 1's non-party 1's ship owner's non-party 1's non-party 1's non-party 1's non-party 1's ship name and/or 1's non-party 1's non-party 1's non-party 1's ship owner's non-party 1's non-party 1's non-party 1's ship name and/or 5's non-party 1's ship owner's non-party 5's non-party 1's non-party 1's non-party 1's ship name and/or 1's non-party 1's non-party 1's non-party 1's company name and/or 1's non-party 1's non-party 1's company name and/or 1's non-party 36's company name on the same day.
2. If the facts are as determined by the court below, the plaintiff and Saturdays and chip chip chip are separate shapes from external appearance, but the plaintiff and Saturdays are established for convenience by the chip chip chip chip chip, the actual owner of the ship of this case, and in fact the plaintiff and management are the same as the office and management, etc., and thus, it shall not be allowed as it violates the principle of good faith or it is an abuse of legal personality.
In the above purport, the court below is just in holding that the plaintiff, which is only a company established for convenience security, claims that the owner of this case is the owner of this case and thus, the plaintiff's non-permission of execution of this case's provisional seizure is not allowed under the principle of good faith since it is merely to achieve the illegal purpose of evading debts beyond the permissible limit of a kind of convenient act of the ship's convenience. There is no error of law in the omission of judgment like the theory of lawsuit.
The precedent that points out the theory of lawsuit is different from the case of this case, and it is not appropriate to this case.
The issue is groundless.
3. The creditor with a maritime lien can exercise the right of auction without the name of debt against the ship regardless of the shipowner's change. Thus, the creditor need not make a provisional seizure of the ship in order to preserve the claim (see Supreme Court Decision 80Da2318, Jul. 13, 1982). The court below erred in holding that the defendants can seize the ship of this case because there is a maritime lien under Article 861 (1) 5 of the Commercial Act concerning the ship of this case. However, although the judgment of the court below which rejected the plaintiff's claim for other reasons is not affected by the conclusion of the judgment of the court below which rejected the plaintiff's claim for this reason, even if there is no error of law as to the maritime lien, it shall not be adopted.
4. Therefore, the appeal is dismissed, and all 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 Kim Young-ju (Presiding Justice)