[손해배상(기)][하집1997-2, 75]
In a case where the obligor notified that the seized movable was owned by a third party at the time of enforcement, but fails to present evidentiary materials to presume it, whether the obligee is liable for tort against the third party due to the seizure (negative)
With respect to a compulsory execution against corporeal movables, an execution officer shall seize the articles under the possession of the debtor, even if the debtor or a third party reports or submits evidentiary materials that the articles are owned by a third party, except in cases where the appearance of the articles, in itself, are clearly deemed to have been possessed by the third party, and even if it is revealed that the third party has ownership of the said articles, the seizure is not illegal. In this case, the third party may file a lawsuit against the third party and seek remedy therefor. In addition, in the compulsory execution against corporeal movables requiring urgency, unless the debtor or the third party presents evidentiary materials that can be presumed that the articles are not owned by the possessor, the creditor, or his/her agent, who participated in the execution, or the third party, may demand that the creditor determine whether to enforce the compulsory execution after confirming whether the articles are owned by the third party. Thus, the debtor's employee at the time of seizure notify the execution officer and his/her employee of the fact that the objects subject to seizure are sold by the reservation of ownership of the third party and the creditor's claim that the objects are not owned by the debtor's fault.
Article 750 of the Civil Code, Article 111 of the Rules of Civil Procedure
Supreme Court Decision 67Da2780 Decided February 27, 1968 (No. 16-1, 113)
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)
Plaintiff Co., Ltd. (Attorney Lee Jong-soo, Counsel for the plaintiff-appellant)
Defendant Co., Ltd. (Attorney White-il, Counsel for defendant-appellant)
The plaintiff's claim is dismissed.
Litigation costs shall be borne by the plaintiff.
The defendant shall pay to the plaintiff 50,36,800 won with 550,36,800 won per annum from April 11, 1995 to the delivery date of a copy of the correction of the claim and the cause of the claim of this case, and with 25 percent per annum from the next day to the full payment date, the amount shall be paid at each rate of 5 percent per annum.
1. Basic facts
The following facts are either in dispute between the parties or in full view of the contents of Gap evidence 1, 2, 3-1, 3, 13, 1, 2, 5, and 5, and the whole purport of the pleading, and there is no counter-proof.
A. The defendant, around September 1994, sold gold 1,00,07,512,000 won to the non-party ○○ Co., Ltd. (hereinafter referred to as the "non-party ○○ Co., Ltd.") and received 233,00,000 won out of the price, and paid 774,512,00 won out of the remainder of the price to the non-party 1's non-party 1's non-party 2's non-party 1's non-party 3's non-party 1's non-party 2's non-party 1's non-party 3's non-party 1's non-party 2's non-party 1's non-party 1's non-party 1's non-party 2's non-party 1's non-party 3's non-party 1's non-party 1's non-party 3's non-party 1's non-party 3's non-party 1's non-party 1's.
B. On the other hand, on October 31, 1994, the Plaintiff concluded a sales contract to sell the machinery listed in the separate sheet (hereinafter “the instant machinery”) to the non-party company for KRW 967,200,000, and received KRW 96,720,000 on that day the remainder payment was paid within two months from the delivery date of the instant machinery, and agreed to withhold the ownership of the instant machinery until the non-party company paid the remainder in full, and delivered the instant machinery to the non-party company on January 25, 1995.
C. The non-party company did not pay KRW 120,00,000 to the defendant by April 3, 1995, the defendant seized the instant machinery possessed by the non-party company on the basis of the notarial deed of this case on April 10, 1995, and the plaintiff filed a lawsuit against the defendant claiming that he had ownership of the instant machinery of this case by asserting that he did not pay in full the price of the instant machinery, and the third party's lawsuit was filed against the defendant for the exclusion of compulsory execution against the instant machinery of this case. The above third party's lawsuit was recognized to have been owned by the plaintiff, and thus, the judgment in favor of the plaintiff ordering the refusal of compulsory execution against the instant machinery of this case on April 18, 1996 was finalized on May 9, 196.
2. Judgment on the plaintiff's claim
A. The plaintiff's assertion
In light of the fact that Nonparty 1, an enforcement officer entrusted by the Defendant, at the time of seizure of the instant machinery, notified Nonparty 2 that the instant machinery was owned by the Plaintiff and Nonparty 2, an employee of the execution officer and the Defendant, the Plaintiff: (a) sold the instant machinery, such as the instant machinery, it was a practice of reservation of ownership up to the time of payment in full; (b) the Defendant reserved ownership up to the time of payment in full; and (c) the Defendant, in accordance with such practice, established the right to transfer the instant machinery to the Plaintiff, with the knowledge that the instant machinery was not owned by the non-party company; and (d) the Defendant did not know that the instant machinery was not owned by the non-party company due to negligence, and (e) did not know that the instant machinery was not owned by the non-party company, and therefore, the Defendant’s execution of seizure of the instant machinery constitutes a tort against the Plaintiff, the owner of the instant machinery, which was the owner of the instant machinery, and thus, the Defendant did not exercise the ownership of the instant machinery for the period of 30.
B. Determination of party members
(1) As to whether the Defendant had known that the instant machinery was not owned by the non-party company at the time of seizure execution with respect to the instant machinery, there is no evidence to acknowledge that the non-party 1, an enforcement officer entrusted by the Defendant, at the time of seizure of the instant machinery, notified the non-party 2, an employee of the non-party company of the fact that the instant machinery was owned by the Plaintiff and the non-party 2, who is an employee of the Defendant, at the time of seizure of the instant machinery. As alleged by the Plaintiff, in the event of sale of the instant machinery, like the instant machinery, as alleged by the Plaintiff, it is a practice of reserving ownership until the full payment of the price was made. The Defendant reserved ownership until the time of the sale of the fiber machinery, such as so forth, in accordance with such practice, and excluded the Defendant from the instant machinery while setting up a right to transfer ownership with respect to the machinery and instruments possessed by the non-party company to secure the right to direct payment claim against the non-party company. It is difficult to conclude that the Defendant did not own the instant machinery at the time of seizure execution.
(2) Next, with regard to the fact that the Defendant was negligent in not knowing that the machinery of this case was not owned by the non-party company at the time of its attachment execution for corporeal movables, even if the debtor or the third party filed a report on the ownership of the article in the possession of the non-party, or if it was proved that the article was owned by the non-party, the attachment would not be illegal, even if the debtor or the third party filed a lawsuit against the third party and the third party did not have ownership of the article. In this case, unless the debtor or the third party presented reasonable evidence to presume that the article was not owned by the non-party company at the time of its attachment execution for corporeal movables, the execution officer asserted that the non-party 1 did not sell the article in this case by the non-party 2, unless it was proved that the non-party 1 did not own the article in this case, and that the non-party 2 had no evidence to prove that the article was owned by the non-party 1's owner at the time of its attachment or sale by the non-party 1's agent.
3. Conclusion
Therefore, the plaintiff's claim of this case under the premise that the defendant knew or was not aware of the non-party company's ownership at the time of seizure execution with respect to the machinery of this case, is dismissed without any further review, and the costs of lawsuit are assessed against the plaintiff who lost the machinery (attached Form omitted).
Justices Choi Jin-sik (Presiding Judge) Kim So-young