손해배상(기)
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
Purport of claim and appeal
The first instance court.
1. The reasoning for the court’s explanation concerning this case is as follows, except for the second part of the judgment of the court of first instance No. 3. 3. 3. Reference to the reasoning for the judgment of the court of first instance. Thus, the court’s explanation is acceptable in accordance with the main sentence of
“3. Possession of an article” refers to the objective relationship in which a person is deemed to be in a factual control under the social concept, and is not necessarily the mere physical and real control over an article. In order to be deemed to have a de facto control, it shall be determined in conformity with the social concept by taking into account the time, space and principal relationship with the article, possibility of exclusion from control of others, etc. (see, e.g., Supreme Court Decisions 91Da38266, Jun. 23, 1992; 2014Da202622, May 29, 2014). We examine whether the Plaintiff occupied the construction site of this case.
According to the overall purport of Gap evidence Nos. 3 and 4, part of the witness C of the first instance trial, and witness D’s testimony and oral argument, it is recognized that one container with a banner stating the Plaintiff’s trade name and contact number, and the phrase “in the course of exercising the right of retention” was installed on one of the construction sites of this case, and one container with a banner stating “I have the right of retention during the exercise of the right of retention, for lack of construction cost.”
However, the following circumstances, which are acknowledged by the aforementioned evidence, are: (a) there is no separate temporary fence that restricts the outside access to the construction site of this case, and there is no special restriction on the access of the general public other than the related persons; (b) containers in the construction site of this case are not owned by the plaintiff; and (c) E, the representative director of the plaintiff, has reached a container of the width only once a week; and (d) there is a circumstance to manage the construction site of this case through another person.