[2] Whether a compulsory execution against only an accessory is permitted (negative), and where a compulsory execution against only an accessory is conducted, the method of remedy (Objection against an execution method)

[3] The case holding that if the purchaser of a ship does not register ownership transfer but occupies and uses the ship, including fishing gear, it may file a lawsuit against a third party on the ground of infringement of right to possess the above fishing gear

[2] In light of the fact that if a compulsory execution against an accessory, which is not a principal thing, is recognized, it would result in unfairly impairing the economic value of the article to be used as a whole, and even if it is prohibited, it would not unreasonably limit an individual's right, a compulsory execution against only the accessory shall not be generally permitted. In the case where a compulsory execution against only the accessory is conducted, an objection may be raised as to the execution method under Article 504 of the Civil Procedure Act on the ground of a violation of the execution procedure.

[3] The case holding that, in case where the purchaser of a ship possesses and uses the ship, including fishing gear, without the transfer of ownership, but without the transfer of ownership, the purchaser has a legitimate right to be protected in relation to fishing gear, which is corporeal movable property, at least as an accessory of the ship, even if the purchaser did not obtain the registration of transfer of ownership of the ship and does not hold the legitimate ownership, and seizure of corporeal movable property possessed by a third party cannot be lawfully conducted without the third party's consent, the purchaser of the ship can file a lawsuit of demurrer against the third party on the ground of infringement of legitimate right of possession as a person holding the right to prevent the delivery of the above fishing gear, which is an accessory to the above fishing gear, without the third party's consent

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

2. This Court authorize a decision to suspend compulsory execution as of June 24, 1998 with respect to the case No. 98 Chicago597 of this Court.

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

4. Paragraph 2 can be provisionally executed.

The following facts are not disputed between the parties, or there is no conflict between Gap evidence 1, Gap evidence 2, 3, Gap evidence 3, 4, Gap evidence 5-1 through 4, Gap evidence 6, 7 (the same shall apply to Eul evidence 1 and 2), and the testimony of a witness beneficiary beneficiary beneficiary, and there is no counter-proof.

A. A vessel listed in the attached list No. 1 (the vessel of this case) is owned by the non-party benefiting prior to April 1996, and the objects listed in the attached list No. 2 are corporeal movables purchased and installed by the above benefiting prior to the construction of the vessel to use the benefiting prior to the construction of the vessel, and the automatic lighting (SE-1K) listed in the attached list No. 2(1) among them is an apparatus to bring the leash into the vessel, and the underwater machinery listed in Paragraph 2 of the attached list No. 2 of the same list (TR2IL) is an apparatus generating light in the sea to bring the man into the vessel around the vessel. The above organizations are corporeal movables used for the man fishing, which can be separated from the said vessel at any time.

B. On March 28, 1997, the Plaintiff concluded a sales contract with the husband, non-party, who was represented by the above beneficiary, to purchase the entire ship of this case including the items listed in the annexed Table 2 at KRW 575,000,000. At the time, the Plaintiff paid the down payment of KRW 100,000 on the date of the contract, and the intermediate payment of KRW 50,000 on April 30, 1997, and each of the above vessels paid KRW 450,00,000 for the aforementioned vessel, and the amount of the collateral debt of KRW 450,000 on July 24, 1996 (in calculating the remaining debt, the remaining amount shall be approximately KRW 245,00,000,000 for the calculation of the remaining debt, including the remaining amount of KRW 180,000,000 for a promissory note issued by the Plaintiff.

C. On April 8, 1997, the Plaintiff joined the Seafarers’ Mutual Aid Association after delivery of the above sales contract, and prepared a business registration certificate to run the inshore fishing business on June 1, 1997, and thereafter, the Plaintiff used the above vessel to engage in fishing business, such as active fishing, fishing, and scambling, etc., and made a consignment sale of fishery products, etc. through the Ulsan Fisheries Cooperative’s auction house, which was the defense against the Ulsan Fisheries Cooperatives.

D. However, on May 21, 1997, before the plaintiff received transfer of ownership on the vessel of this case from the plaintiff after the payment of the above purchase price, the non-party regular seat, the creditor of this beneficiary, received a provisional attachment order on May 24, 1997 from the Daegu District Court 97Kadan22641, and the provisional attachment was executed on May 24, 199. The provisional attachment order was executed on May 24, 1997 by the creditor's strict number of creditors, as the same court 97Kahap836 on May 29, 1997, and the provisional attachment was executed on June 2, 197. The provisional attachment order was executed on June 9, 197 by the non-party joint manufacturing company of this case as the court 97Kadan2594 on June 7, 1997.

E. Meanwhile, the Defendant applied for compulsory execution of corporeal movables as to the articles listed in the [Attachment No. 2] attached hereto (hereinafter “the instant fishing gear”) by Ulsan District Court 98No2650 based on an executory exemplification of the judgment regarding the claim for the price of goods against the Defendant’s non-party-beneficiary’s non-party-beneficiary for the execution of the compulsory execution of corporeal movables against the Defendant’s non-party-beneficiary. On May 8, 1998 upon the above delegation of the execution by the Defendant, the above court execution officer was conducted on May 8, 1998 when the instant vessel was placed in the port prior to the Silsan-dong Defense Terminal, Ulsan-dong, where the instant vessel is at anchor, and thereafter, on June 24, 1998, the Plaintiff was issued a decision to suspend compulsory execution under the sentence No. 2 ordering the suspension of the above compulsory execution procedure from the court up to the time of

2. Judgment of party members

A. First of all, according to the legal nature of the fishing gear of this case, the above articles are separate corporeal movables from the vessel of this case, or the above benefiting accommodation, the owner of the vessel of this case, which is the owner of the vessel of this case, shall be deemed to correspond to the so-called "the accessory" attached to the vessel of this case.

However, in principle, the accessory is in accordance with the disposal of the main thing (Article 100(2) of the Civil Act), and as recognized earlier, as long as it is clear that the Plaintiff purchased the main thing separate from the vessel that is the main thing, not the main thing, but the entire vessel of this case attached to the above article, it shall be deemed that the above article is identical with the vessel of this case, which is the main thing.

Therefore, the effect of the right to collateral security established on the ship of this case, which is the main object, naturally affects the fishing gear of this case (in particular, Article 871(2) of the Commercial Act provides that ship mortgage shall extend to its appurtenances regardless of whether it is an accessory, and Article 742 of the Commercial Act provides that ship mortgage shall be presumed to be an accessory to the ship.) Furthermore, the effect of the provisional attachment, seizure and other disposition of the ship of this case, which is the main object, as a matter of course, is also excessive to the fishing gear of this case, which is an accessory.

B. Next, with respect to the legitimacy of compulsory execution against the fishing gear of this case, Article 10(2) of the Factory Mortgage Act provides that "the object of a mortgage shall not be the object of seizure, provisional seizure, or provisional disposition unless the object of the mortgage is the land or building." The purport of these provisions is that if compulsory execution against the accessory itself, which is not the main thing, would result in unreasonably damaging the economic value of the object to be used as a whole, and even if it is prohibited, it would not unreasonably limit the rights of an individual. Therefore, in light of the purport of the above provision, compulsory execution against the accessory shall be interpreted as not generally permitted.

Therefore, it is evident that there is a defect in the execution procedure in the execution procedure against the fishing gear of this case, which is an accessory (the plaintiff may raise an objection against the execution method stipulated in Article 504 of the Civil Procedure Act on the ground of a violation of such execution procedure).

C. In addition, according to the above facts, the plaintiff purchased the ship of this case including the fishing gear of this case and occupied and used it, and has no legitimate ownership as a person who has not yet been registered for transfer of the ownership of the ship, the plaintiff has a legitimate right to possess the fishing gear of this case, which is corporeal movables. Unlike compulsory execution against the real property not impeding a third party's possession, seizure of corporeal movables possessed by a third party cannot be lawfully conducted unless the third party's consent is obtained (see Article 528 of the Civil Procedure Act). Thus, the plaintiff can file a lawsuit against the third party on the ground of infringement of legitimate right to possess the fishing gear of this case as a person who has the right to stop delivery of the fishing gear of this case without his/her consent (see Article 528 of the Civil Procedure Act).

D. Ultimately, a compulsory execution against the fishing gear of this case is a compulsory execution against the accessory exclusively, and there is a procedural defect, and it should be denied as a compulsory execution against the plaintiff, the possessor of corporeal movables, as an infringement on the plaintiff's right to possess corporeal movables.

3. Conclusion

Therefore, the defendant's compulsory execution against the fishing gear of this case is merely an accessory, but it is not permitted as it infringes on the plaintiff's right to possess. Thus, the plaintiff's claim of this case seeking the non-performance of the execution of this case is justified, and it is decided as per Disposition with the decision to authorize the suspension of the above compulsory execution.

Judges Park Jong-sung