[2] In a case where the owner of a building which is the object of a lien requests a lessee of the building against the lien holder, the case affirming the judgment below that the lessee cannot refuse a request for the delivery of the building on the ground that the consent of the obligor against the lien holder cannot be deemed to have obtained the consent under Article 324(2) of the Civil Code, and the lessee cannot refuse a request for delivery of the building

1. As to the grounds of appeal Nos. 1 and 2

Although the possession of the lien holder, which is the requirement for the establishment of a lien, is not directly or indirectly possessed, the lien holder has no right to lease the object to another person unless the debtor or the owner has given his/her consent (see Article 324(2) of the Civil Act). Such lease by the lien holder is an infringement on the owner’s disposal right, and thus, cannot be asserted to the effect of the lease by the owner. Therefore, the possession of the lessee of the object of the lien by the lease by the lien holder without the owner’s consent cannot be deemed to be based on the lawful title that can oppose the owner (see Supreme Court Order 2002Ma3516, Nov. 27, 2002; Supreme Court Decision 2003Da56694, Feb. 13, 2004).

According to the reasoning of the judgment below, the court below found facts as stated in its reasoning after compiling the adopted evidence, and held that even if Nonparty 1 had a lien on the building of this case until he received 680,873,334 won for the construction payment from Nonparty 2, the defendant cannot be deemed to have obtained the consent under Article 324(2) of the Civil Act only with the consent of Nonparty 2, the debtor of the construction payment, as alleged by the defendant, in order to refuse the plaintiff's request for the extradition of the building of this case by using the above lien of Nonparty 1, in order to refuse the plaintiff's request for the extradition of the building of this case from Nonparty 1, the owner of the building of this case, as at the time when the defendant leased the building of this case from Nonparty 1 (hereinafter "regular unemployment").

In light of the above legal principles and records, such fact-finding and determination by the court below are justifiable. Contrary to the allegations in the grounds of appeal in this part, the court below did not exhaust all necessary deliberations by misapprehending the legal principles on lien, or did not err by exceeding the bounds of the principle of free evaluation of evidence.

2. As to the third ground for appeal

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after comprehensively taking account of the evidence adopted by the court below, and determined that there is no evidence to acknowledge the agreement merely based on the circumstance of the defendant's assertion that he consented to or approved the above lease of the building of this case, and there is no other evidence to acknowledge it. Even if the written agreement on the execution of agreement is interpreted as "ex post facto approval" on the lease of this case and the right to lease of the defendant with respect to the building of this case, it is not effective to prevent the request for extradition of this case since it was after it lost ownership of the building of this case, and there is no evidence to acknowledge it.

In light of the records, such fact-finding and judgment of the court below are justifiable. Contrary to the allegations in the grounds of appeal in this part, the court below did not exhaust all necessary deliberations or recognized facts beyond the bounds of the principle of free evaluation of evidence.

3. Conclusion

Therefore, the appeal is dismissed, 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.

Justices Min Il-young (Presiding Justice)