The defendant shall pay to the plaintiff 2,075,010,991 won and 1,97,484,93 won among them, 19% per annum from January 27, 2010 to January 19, 2012, and 20% per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

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

4. The part ordering monetary payment under paragraph (1) may be provisionally executed.

The reasoning for this court's explanation is as follows: "each of the instant cargo pumps was loaded on October 8, 2008, on the burgian 10 January 10, 2009, and on February 4, 2009, each of the instant cargo pumps was handed over at the port of Busan ( Address 1 omitted) to the main sentence of Article 42 of the Civil Procedure Act, and delivered in succession to the main sentence of Article 420 of the same Act. On the other hand, the Plaintiff acquired a multimodal transport bill with the Plaintiff as consignee with respect to the above cargo pumps from October 27, 2008 to February 12, 2009."

2. Determination

A. Acquisition of transfer security rights by the Plaintiff

As seen in the above facts, as Japan agreed to transfer the goods accompanying the transaction related to the issuance of the import letter of credit and the related documents to the Plaintiff as security for the import price obligations owed to the Plaintiff and the expenses incidental thereto, the Plaintiff acquired the security interest of each of the above cargo pumps at the time of acquiring the bill of lading with respect to each of the instant cargo pumps as consignee (see Supreme Court Decision 98Da46587 delivered on December 10, 199).

B. Validity of a contract for transfer security concluded between the defendant and Japan;

(1) The security agreement entered into between the Defendant and the Iljin Shipbuilding is the subject matter of the instant vessel and its raw materials, and thus, it can be deemed that the collective property is the subject matter. However, the security transfer for the collective property is valid only in cases where the location of the collective property is specified in relation to the public disclosure system for the safety of transaction. In this case, the Defendant and Il Il Shipbuilding concluded the security transfer agreement only for the instant vessel and raw materials located “in the place of business where the Il Il Shipbuilding-si located ( Address 2 omitted)” (record 86,89) and the effect of the said security agreement is limited to the instant vessel and raw materials located in the said place of business.

(2) A vessel is so-called "synthey" comprised of the chairs, such as the angle, engine, anchor, loading and unloading equipment, etc. (However, even if the chairs are not damaged and can be easily separated without any damage to the vessel, and if the cost of separation is low, the chairs shall not be deemed to correspond to the vessel (see Supreme Court Decision 98Da39251 delivered on January 26, 199), but if the chairs are attached to the vessel for the commercial use of the main vessel, it shall be an accessory and shall follow the disposal of the main vessel pursuant to Article 100(2) of the Civil Act). The raw materials refer to all materials necessary for building and manufacturing the vessel, the chairs, the speed, and the equipment of loading and unloading equipment, etc. In addition, each of the instant cargo pumps shall not be deemed to correspond to the main objects of the instant vessel, but shall not be deemed to correspond to the independent objects of the instant vessel, until they are the main objects of the instant vessel, but shall not be deemed to be the independent objects of the ownership of the instant vessel.

(3) Therefore, the time when the Defendant acquired the right to transfer to each of the instant cargo pumps is not the time when the instant cargo pumps acquired the ownership of each of the instant cargo pumps, but the time when each of the instant cargo pumps accords with the instant vessels or becomes a accessories. Even if each of the instant cargo pumps, as alleged by the Defendant, falls under the raw materials of the instant vessels, the Defendant acquired the right to transfer to each of the instant cargo pumps only at the time when each of the instant cargo pumps was brought into the place of business located at the time of entry of the instant cargo pumps, which was specified as the location of the aggregate at the time of the instant cargo transfer contract, into the place of business located at the time when the instant cargo pumps were brought into the place of business located at the time of the instant cargo transfer. Therefore, the time of acquisition does not change to the point that the Plaintiff acquires the right to transfer to

(4) In order to secure a pecuniary obligation, where an obligor transfers the movable property owned by him/her to the obligee by means of possession and alteration, and the obligor agrees to continue possession of the movable property, barring any special circumstance, the ownership of the movable is merely transferred in trust. Thus, in the internal relationship between the obligee and the obligor, the obligor holding the ownership of the movable property but the obligor in the external relationship becomes an unentitled person who already transferred the ownership to the obligee. Thus, even if a contract to establish a security for transfer is concluded between the obligee and another obligee and the obligor is delivered by means of possession revision, the obligee who entered into the contract later cannot acquire the security for transfer, unless the bona fide acquisition is recognized. Thus, the subsequent obligee cannot acquire the security for transfer lawfully (see Supreme Court Decision 2004Da37430, Feb. 18, 2005).

(5) Therefore, insofar as the Plaintiff acquired the concession right prior to the Defendant with respect to each of the instant car pumps, the Defendant cannot acquire the security right for each of the said car pumps, and furthermore, insofar as the acquisition method of the Defendant’s security right for transfer is an alteration in possession, the Defendant cannot acquire the security right for each of the instant car pumps.

C. Infringement of the Plaintiff’s concession right

(1) In the event a dual transfer by way of possession or alteration of movable property is established, the original mortgagee may claim his exclusive security right against the subsequent mortgagee. Thus, the subsequent mortgagee’s act of prohibiting the original mortgagee from exercising his security right by disposing of the object of transfer by means of transfer is an unlawful act that infringes on the original mortgagee’s security right, regardless of whether the establishment of dual transfer by means of transfer constitutes embezzlement or breach of trust, or whether the subsequent mortgagee actively takes part in the establishment of dual transfer by way of transfer (see Supreme Court Decision 9Da65066 delivered on June 23, 200).

(2) In the instant case, even though the Plaintiff acquired the right to transfer security first with respect to each of the instant car pumps, the Defendant, the next mortgagee, was unable to easily separate the said car pumps by attaching them to the instant vessel, thereby infringing on the Plaintiff’s right to transfer security. Therefore, the Defendant is obligated to return unjust enrichment to the Plaintiff pursuant to Article 261 of the Civil Act.

D. Scope of unjust enrichment to be returned

(1) The amount of losses suffered by the Plaintiff due to the conformity of each of the instant car pumps is USD 1,872,000 ($ 640,000 outstanding amount of the car pumps attached to the instant vessel 140 + USD 1,232,000, and KRW 1,232,000 of outstanding amount of the car pumps attached to the instant vessel and KRW 141, and KRW 16-18 (including additional numbers)) and damages incurred therefrom, which are the remainder of the amount of the security interest secured by the instant car pumps, excluding the repayment from the amount loaned by the Plaintiff to Japan.

(2) Comprehensively taking account of the aforementioned facts and the purport of the entire pleadings with respect to the testimony of the Non-Party witness of the first instance trial, the vessel of this case No. 140 can be acknowledged that the above-mentioned facts and the Non-Party witness of the first instance trial play the role of the Kenya tank line due to the attachment of the above Kacp, and the Kacp, attached to the vessel of this case, still has not lost its function. Accordingly, it is reasonable to deem that the value of each vessel of this case increased due to the conformity with each of the above Kacp pumps of this case reaches the revenue of each of the above Kacp, and that the benefit remains as of the date of the conclusion of the pleadings of this case.

(3) Therefore, the defendant is obligated to refund the plaintiff's loss, which is the smaller of the plaintiff's loss and the defendant's existing interest. The defendant is obligated to pay to the plaintiff 2,075,010,91 won [the sum of the principal calculated on the basis of the payment date of each payment of the import price of 1,977,484,93 won (A-2) in accordance with Article 3 of the Foreign Exchange Transaction Agreement (A-2). The amount calculated on November 24, 201, converted from USD 1,154 won per exchange rate as of November 24, 201, which is less than KRW 2,160,28,000, which is less than KRW 2,154 won per exchange rate as of November 24, 2009, 15.6% per annum from October 14, 2009 to December 14, 2009, 194 and 14.7% per annum from 19.7% per annum.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified only for the above part, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, part of the plaintiff's appeal is accepted and the remaining appeal is dismissed. It is so decided as per Disposition.

Judges Kim Chang-ju (Presiding Judge)