[비품사용료][공2020하,1940]
In a case where a movable property is not the object of compulsory execution and is not the object of a claim for extradition of a real estate, and such delivery is to be made without a debtor or a debtor's relative, etc., whether an execution officer may have the movable property kept in custody by himself/herself or by appointing a creditor or a third party as a custodian (affirmative), and whether the custody expenses incurred in this case may be exercised on the movable property
Article 258 of the Civil Execution Act provides for the execution of requests for extradition of immovables, including immovables, as follows. When executing requests for extradition of immovables, where any movable that is not subject to compulsory execution exists, such movable shall be removed and delivered to the debtor, his/her relatives, etc. (hereinafter referred to as “debtor, etc.”) (hereinafter referred to as “debtor, etc.”). When there is no debtor, etc., an execution officer shall keep such movable at the debtor’s expense (paragraph 5).
When there is no debtor, etc., an execution officer may voluntarily keep movables, and appoint a creditor or a third person as a custodian and have him/her keep them in custody. In such cases, where expenses for keeping movables are incurred, the execution officer, creditor, etc. may exercise the right of retention until he/she is reimbursed for the expenses for keeping them.
Article 258(3), (4) and (5) of the Civil Execution Act, Article 320 of the Civil Act
Plaintiff (Law Firm K&P et al., Counsel for the plaintiff-appellant)
Seoul High Court Decision 200Na1448 delivered on August 1, 200
Gwangju District Court Decision 2016Na59125 Decided October 26, 2018
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. Article 258 of the Civil Execution Act provides that the execution of a request for the delivery of real estate, including immovables, shall be carried out as follows. In executing the request for the delivery of real estate, where any movable that is not an object of compulsory execution exists, the movable shall be removed and delivered to the debtor, his/her relatives, etc. (hereinafter “debtor, etc.”). When there is no debtor, etc., the execution officer shall keep the movable at the debtor’s expense (Paragraph 5).
When there is no debtor, etc., an execution officer may voluntarily keep movables, and appoint a creditor or a third person as a custodian and have him/her keep them in custody. In such cases, where expenses for keeping movables are incurred, the execution officer, creditor, etc. may exercise the right of retention until he/she is reimbursed for the expenses for keeping them.
2. According to the reasoning of the lower judgment and the record, the following facts are revealed.
around 209, ○○△△△ Leisure Development Co., Ltd. newly constructed the instant building on the third underground floor and the 18th ground floor size, and registered the preservation of ownership on November 23, 201. From May 201, 201, ○○ Hotel Co., Ltd. operated the hotel business in the instant building using the instant equipment, which was owned by itself, from around May 201.
With respect to the instant building, at the request of the first-class mortgagee, Gwangju District Court 2012tacheon Branch Office 2012Hu8519, and the Defendant purchased the instant building at the above auction procedure on February 12, 2014. The Defendant requested the Gwangju District Court 2014Ma237 to issue an order to deliver the instant building on March 12, 2014, and was handed over the instant building on March 26, 2014. At the time of compulsory execution, the enforcement officer of the Gwangju District Court 2010 had the Defendant keep the instant equipment located in the instant building.
On March 25, 2014, the Plaintiff transferred its ownership by taking over the right to claim the return of the instant fixtures from the △△△△△△ Council.
3. The lower court rejected all the Plaintiff’s primary and conjunctive claims on the following grounds.
A. The plaintiff shall deliver the instant equipment to the primary claim and seek the return of unjust enrichment obtained by the defendant using the instant equipment.
In the absence of special circumstances, the Defendant is obligated to deliver the instant equipment to the Plaintiff as the owner. However, the Defendant has the right to retain the instant equipment until the claim for the storage cost incurred by keeping the instant equipment was repaid. It is difficult to recognize that the Defendant used the instant equipment and made profits therefrom.
B. The Plaintiff filed a claim for damages for tort on the ground that the Defendant refused to return the instant equipment.
As the Defendant possessed the instant equipment in accordance with an execution officer’s order during the execution procedure for requesting the delivery of real estate against the instant building, and had the right to retain the instant equipment until the claim for the storage expenses was paid, it cannot be deemed unlawful for the Defendant to refuse to return the instant equipment.
4. Examining the reasoning of the lower judgment in light of the foregoing legal doctrine and the evidence duly admitted, such determination is justifiable. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence submission and the right
5. The Plaintiff’s appeal is without merit, 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 Lee Dong-won (Presiding Justice)