2. All of the plaintiff's claims are dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The defendant shall deliver to the plaintiff the real estate indicated in the attached Form, and confirm the existence of the plaintiff's lien on the above real estate.

2. Purport of appeal

The same shall apply to the order.

A. An advanced comprehensive development company (hereinafter “Advance comprehensive development”) was established for the purpose of construction business, etc., and is currently in the rehabilitation procedure after receiving a decision to commence the rehabilitation procedure as the Ulsan District Court 2009 Mo10 on September 18, 2009. The plaintiff (the non-party) is the administrator of advanced comprehensive development, and Sung-gu Industrial Development Co., Ltd. (hereinafter “Song-gu Industrial Development”) is the management manager of advanced comprehensive development, and Sung-gu Co., Ltd. (hereinafter “Song-gu Industrial Development”) newly constructed and sold a building indicating the attached real estate (hereinafter “the building of this case”) on the ground of the construction site of this case and two lots (hereinafter “the construction site of this case”).

B. On July 30, 2008, the Seongdong-gu Development contracted the construction of the instant building (hereinafter “instant construction”) to the advanced comprehensive development entity, which is the contractor, while carrying out the said project as the executor of Seongdong-gu Development as an advanced comprehensive development entity, and entered into a business agreement and an agency contract (hereinafter “instant business agreement”) with the content that an agent will receive a loan for land purchase and project costs from the National Agricultural Cooperative, which is the lending financial institution (hereinafter “the instant business agreement”).

C. Around September 12, 2008, advanced comprehensive development contracted the instant construction from Seongdong-gu Industrial Development, and started construction work around that time, and suspended construction work around April 30, 2009.

D. From the time when the instant construction has been suspended, advanced comprehensive development: (a) installed two containers and the banner, etc. on the instant construction site as the secured claim for the obligation to pay the construction price for Seongdong Industrial Development; and (b) subsequently, the Plaintiff occupied the instant building; (c) filed an application for provisional disposition prohibiting lien interference with the instant construction on April 20, 2012 with the Daegu District Court Port Branch Branch 2012Kahap43, the Plaintiff (Seoul District Court Branch Branch Branch 2012Kahap43), and (d) announced the Plaintiff’s exercise of the lien by attaching a notice at the construction site on May 2, 2012.

E. On May 3, 2012, the Plaintiff filed a lawsuit against the development of Seongbuk-gu District Court 2010Kahap84777 and filed a lawsuit seeking the payment of the unpaid construction cost, and on May 3, 2012, the Plaintiff paid to the Plaintiff the amount of KRW 2,610,867,000 per annum from May 15, 2009 to May 3, 2012 and the amount of KRW 6% per annum from May 3, 2012 to the date of full payment. The Plaintiff was sentenced to a judgment of KRW 20% per annum from the next day to the date of full payment. The Plaintiff appealed against the above judgment, but the Defendant appealed the appeal on July 25, 2013 (Seoul High Court 2012Na4268).

F. Meanwhile, on the other hand, on April 10, 2012, the New Real Estate Trust issued a public notice on the instant construction site and the instant building, and the Defendant purchased the instant construction site and the instant building on July 31, 2014 in the said public sale procedure and completed the registration of ownership transfer in its name on August 8, 2014.

G. After that, the Defendant’s defect in seeking to implement the remaining construction in the instant building, the Plaintiff filed an application for provisional injunction against obstruction of lien against the Defendant who purchased the instant building under the Daegu District Court Port Branch 2014Kahap58, and received a provisional injunction decision on November 10, 2014, and the enforcement officer issued a public notice of the instant building on November 12, 2014, and publicly announced the Plaintiff’s exercise of lien.

[Ground of Recognition] A without dispute, Gap evidence Nos. 1 through 4, Gap evidence No. 6, Gap evidence No. 12-5 through 11, Gap evidence No. 15-1, 2, Gap evidence No. 17, 26, 29, 31, and 45, each of the statements and images No. 5-1, 2, Eul evidence No. 107, non-party No. 2's testimony and the purport of the whole pleadings

2. Determination as to the request for delivery of a building

A. Determination on this safety defense

The Defendant asserts that the part of the instant lawsuit regarding the claim for recovery of possession is unlawful as it was filed after one year from the time when the Plaintiff was deprived of possession, on August 8, 2014, since the date on which the Plaintiff deprived of possession of the instant building.

Article 204(3) of the Civil Act provides that the right to claim the recovery of possession against a person who has deprived of possession shall be exercised within one year from the time he/she left the place of possession. The above exclusion period is reasonable, rather than the sufficient period to exercise his/her right outside the court’s jurisdiction, and the so-called period of release that the lawsuit must be brought within the said period (see Supreme Court Decision 2001Da8097, 8103, Apr. 26, 2002, etc.). It cannot be deemed that the lawsuit has been brought to exercise the right to claim the recovery of possession upon the application for provisional disposition. Meanwhile, in the case of the claim for the recovery of possession, it is difficult to consider only whether the person has occupied the object at the time of his/her assertion that the person has deprived of possession (see Supreme Court Decision 2010Da18294, Jul. 15, 2010).

As to the instant case, while the Plaintiff’s assertion was occupied for the purpose of exercising the right of retention on the basis of the claim for construction cost as to the instant building, the Defendant deprived of the Plaintiff’s possession on August 8, 2014, and thereafter, the Plaintiff restored possession of the instant building on or around November 12, 2014, and around April 1, 2015, the Defendant again deprived of the Plaintiff’s possession and has been in possession until now (it cannot be deemed that the Plaintiff could not be deemed to have led to the Defendant’s confession that the Plaintiff had been continuously deprived of possession from August 8, 2014). As delineated below, the Plaintiff could not be deemed to have been deprived of the Plaintiff’s possession on or around August 8, 2014, from the Defendant’s temporary possession and had been restored to the Defendant’s possession on or around November 12, 2014, and the Plaintiff could not be deemed to have recovered from the possession on or around April 1, 2015.

Therefore, the defendant's defense of the above principal safety is without merit.

B. Judgment on the merits

1) Facts of recognition

The following facts do not conflict between the parties, or can be acknowledged by comprehensively considering the following facts: Gap evidence Nos. 28, 31, Gap evidence Nos. 32-1, 2, 36, Gap evidence Nos. 37-1, Gap evidence No. 50-1, 2, Eul evidence No. 42-211, Eul evidence No. 101, Eul evidence No. 32-39, Eul evidence No. 107, Eul evidence No. 20-23, and 30, and the testimony of non-party No. 2 of the trial court as a whole.

A) On August 8, 2014, Nonparty 3, the actual representative of the Defendant, and Nonparty 4, the head of the Defendant’s management team, cut off the locks set up in the entrance and container of the instant building, installed iron blocking in front of the container entrance used by advanced comprehensive development as an office, and removed banner to inform that it is the exercise of the right of retention.

B) On November 4, 2014, the Plaintiff attempted to open the entrance of the instant building and to install a cream at the container location, and the instant construction carried out by the Defendant was partially suspended, and thereafter, the Plaintiff’s employees stayed in the said container and occupied the instant construction site.

C) On November 12, 2014, at around 06:00, the Defendant removed a container window where the Plaintiff’s employees had mobilized several thousands of the Plaintiff’s employees, such as service personnel, by hand, opened a container entrance that was locked by intrusioning the following inside, and let the Plaintiff’s employees out of the container. On the same day, around 10:00, the Defendant added the Plaintiff’s employees to the front pents of the instant construction site, wherein the phrase “the possession of the right of retention” was written as soon as possible on the front pents of the instant construction site.

D) Meanwhile, the Plaintiff filed an application against the Defendant for provisional disposition prohibiting the obstruction of the right of retention against the Daegu District Court Branch Branch 2014Kahap58 on November 10, 2014, and received the provisional disposition acceptance on November 10, 2014. According to such decision, Nonparty 2 notified Nonparty 5, Defendant employees Nonparty 5 of the summary of the execution of the provisional disposition stating that “the Defendant shall not interfere with the Plaintiff’s exercise of possession based on the right of retention on the instant building,” and attached a written notice of the provisional disposition acceptance on the instant building.

E) After the execution of the above provisional disposition on November 12, 2014, Nonparty 3, Nonparty 4, etc. was carried out, Nonparty 3, and Nonparty 4, etc., followed by the Defendant’s employees to drive away the Plaintiff’s employees.

F) From March 24, 2015 to April 1, 2015, the Plaintiff occupied the instant building again, and accordingly, the instant construction was partially suspended.

G) Accordingly, on April 1, 2015, the Defendant was also driving away the Plaintiff’s employees from the instant building through the Defendant’s employees, etc., and removed the banner “in possession of the right of retention,” which was attached to the instant building by the Plaintiff. The term “in possession of the right of retention” and “the comprehensive development of the right of retention,” at the entrance of the instant building, was entirely used the Scar press.

H) Since then, the defendant occupies the building of this case until now.

2) Determination

In a lawsuit for the recovery of possession, "the possession" refers to the possession of an object that is objectively and objectively deemed to belong to the factual control of that person by social norms, and to be in de facto control, it does not necessarily mean that the object is physically and practically controlled, but should be determined with a view to social norms by taking into account the time and space relationship with the object, the relationship with the object, the possibility of excluding others' control (see Supreme Court Decision 95Da8713 delivered on August 23, 1996).

According to the above facts, around August 8, 2014, the Plaintiff resigned from the Defendant who purchased the instant building from the occupation of the instant building, and recovered from the occupation for eight days from November 4, 2014 to November 11, 2014, and for nine days from March 24, 2015 to April 1, 2015. It is recognized that the Defendant again occupied the instant building and then occupied the instant building.

However, the right to recover from one’s own possession of the instant building under Article 209(2) of the Civil Act can be restored to one’s own possession within a limited period of time when possession has been deprived. As such, the term “time” under the aforementioned provision is interpreted as “as soon as possible objectively or within the extent deemed necessary to restore possession by excluding the perpetrator in light of social norms,” and thus, if a considerable time has elapsed after the deprivation, one’s own right may not be exercised (see Supreme Court Decision 91Da14116, Mar. 26, 1993). According to the above facts, it is difficult to recognize that the Plaintiff, from the Defendant who purchased the instant building on or around August 8, 2014, was deprived of possession of the instant building from the Defendant, and for three months thereafter, from the point of possession to the date of November 14, 2014, the Plaintiff’s right to recover from one’s own possession for 14th day after the lapse of 14th day from the Plaintiff’s lawful possession.

In addition, according to the above facts and evidence, the plaintiff's provisional disposition No. 2 was executed from November 4, 2014 to November 11, 2014, and it was merely the recovery of possession during the above period from March 24, 2015 to April 1, 2015, and it is difficult to view that the defendant had been holding the above provisional disposition No. 10 to the above provisional disposition No. 2 against the defendant's non-party 1, which did not interfere with the execution of the provisional disposition No. 4 of this case's provisional disposition No. 2. The defendant's order No. 2 of this case's provisional disposition No. 2 of this case's provisional disposition No. 2 of this case's order No. 10 of this case's enforcement of the provisional disposition No. 2 of this case's execution of the provisional disposition No. 2 of this case's building's order No. 2 of this case's execution of the provisional disposition No. 10 of this case's order No. 15 of this case'

Meanwhile, in principle, the Plaintiff’s claim for restitution of possession of the object is sufficient to assert and prove that the Plaintiff occupied the object but deprived of it by the Defendant. It is unnecessary to assert and prove that the possession of the object is based on the principal right (see Supreme Court Decision 2010Da2459, Mar. 29, 2012). The claim for restitution of possession cannot be rejected on the ground that the person who deprived of possession has the principal right to the object of possession (see Supreme Court Decision 2010Da18294, Jul. 15, 2010). However, since the Plaintiff did not have any title, it is reasonable to view that the Plaintiff had no legitimate right to possess the object of another person without permission even if he did not exercise the right to request restitution of possession of the object of this case against the rightful owner of the right, such as the waiver of possession after the commencement of possession in good faith and the invalidation of the contract that caused the commencement of possession, etc., of the right to request restitution of possession of the object of this case, the Plaintiff would not be justified in our Civil Act.

Therefore, on April 1, 2015, the Plaintiff’s claim for delivery of the instant building on the premise that the Plaintiff had a legitimate possessory right by lawfully occupying the instant building on or around April 1, 2015 is without merit.

3. Determination as to the claim for confirmation of existence of a lien

A. The plaintiff's assertion

The Plaintiff has a claim for the payment of the construction cost as to the instant building, and since the advanced comprehensive development suspended the instant construction and lawfully occupied the instant building from the date of suspending the instant construction, there is the right to invite the instant building until the payment of the unpaid construction cost claim. Although the Defendant was deprived of the possession of the instant building and currently occupied the instant building, it is not allowed to assert that the lien has been extinguished due to such act of abuse as it constitutes abuse of rights. Accordingly, the Plaintiff still has the right of retention and the Defendant denies the Plaintiff’s right of retention. Therefore, there is a benefit to seek confirmation of the right of retention.

B. Determination

1) Whether the right of retention is recognized for the Plaintiff

(1) Following the above facts, Gap evidence 1, 13, Gap evidence 15-1, 3 through 35, Eul evidence 5-1, and Eul evidence 3-1, the following circumstances were comprehensively taken into account: (1) the plaintiff installed containers in the construction site of this case and used them as site offices; and (2) the construction work of this case was suspended on September 25, 209, after entering into a contract for the remaining land of this case with Jink Construction Co., Ltd. and was suspended again due to the bankruptcy of Jink Construction Co., Ltd., 200, and the construction work of this case was executed on June 25, 201, and the new construction work of this case was executed on the 20th anniversary of this case's construction site of this case; (3) the new construction work of this case and the new construction work of this case was executed on the 20th anniversary of this case's construction site of this case.

B) Meanwhile, since the right of retention is extinguished due to the loss of possession (Article 328 of the Civil Act), the possession of an object is a requisite for the establishment of the right of retention and the requirements for the existence of the right of retention to be maintained without being severed (see Supreme Court Decisions 2003Da46215, Feb. 27, 2004). Even if the building in this case was the object of the right of retention for securing the Plaintiff’s claim for the construction cost, as long as the Plaintiff lost possession, the right of retention is extinguished even if it was caused by the Defendant’s deprivation of possession, and it cannot be said that there exists a right of retention for the building in this case until the Plaintiff restores possession by executing it by winning a judgment in favor of the Plaintiff on the recovery of possession (see Supreme Court Decisions 2011Da72189, Feb. 9, 2012; 2003Da46215, Feb. 27, 2004).

C) As to this, the Plaintiff asserted that there is no lien on the ground of the Plaintiff’s loss of possession as long as the Defendant illegally deprived of the Plaintiff’s possession, it constitutes an abuse of rights. However, as seen below, the Plaintiff voluntarily renounced the right of retention, and thus, constitutes an illegal possessor who occupied the building of this case, which was owned by another without permission, even though he/she was aware that he/she did not have any title, and cannot exercise his/her right to claim the return of possession against the Defendant, who is a legitimate right holder who has deprived of possession. Therefore, the Defendant cannot be deemed to have unlawfully deprived of the Plaintiff’s possession. Moreover, the Defendant is merely denying the existence of the right of retention on the ground that the Plaintiff actively asserted the existence of the right of retention by the action for confirmation of the right of retention of this case. In light of the fact that the Plaintiff could have been deprived of possession by the Defendant immediately after his/her deprivation of possession by the Defendant under Article 209(2) of the Civil Act, the Plaintiff’s assertion that the Defendant did not deny the Plaintiff’s right of retention against the Defendant’s above.

2) Whether the Plaintiff renounced the right of retention

A) In July 2008, the Defendant asserts that the advanced comprehensive development loaned the construction cost and delivered the letter of waiver of the right of retention to the academic and social agricultural cooperatives, and that on July 30, 2008, the Defendant already renounced the right of retention prior to the conclusion of the instant construction contract when entering into the instant business agreement with Sung-do Industrial Development, Bio-real estate trust, thought and agricultural cooperatives, and that the said agreement on waiver of the right of retention remains effective on the grounds that the said agreement on waiver of the right of retention has a big effect, and thus, the Defendant cannot exercise the right of retention against the Defendant, and that the Plaintiff’s assertion of the right of retention again even after the waiver of the right of retention is contrary to the principle of Geum-dae and the good faith

B) On the other hand, in cases where a contractual content is written between the contractual parties as a disposal document, barring any special circumstance, if the objective meaning of the text is clear, the existence and content of the contractual intent should be recognized as well, barring any special circumstance. However, if the objective meaning of the text is not clearly revealed, a comprehensive consideration of the contents of the text, motive and background of the contract being made, the purpose to be made by the parties through the contract, the parties’ genuine intent, transaction practices, etc., and a reasonable interpretation of the content of the contract should be made in accordance with logical and empirical rules, the common sense of society, and the common sense of transaction, which are consistent with the ideology of social justice and equity (see Supreme Court Decisions 2014Da1415, Jun. 26, 201; 93Da3103, Oct. 26, 1993). In addition, even if a statutory collateral security right is merely a means to protect the creditor’s interest, and thus a special agreement to waive it is valid, even if other creditors have no legal title 14.

In light of the above legal principles, comprehensively taking account of the following facts and circumstances acknowledged by the evidence as above, Gap evidence Nos. 29, Eul evidence Nos. 1 and 2, and the purport of the whole pleadings, it is reasonable to view that advanced comprehensive development had already renounced the right of retention before entering into the business agreement of this case while entering into the business agreement of this case and being awarded the contract of this case.

① Around July 2008, Around July 2008, an advanced comprehensive development issued a construction right and a letter of waiver of lien to the effect that “in the event that it is impossible to carry out any of the projects normally, such as sub-do, bankruptcy, application for commencement of rehabilitation procedures, the occurrence of other similar causes, and any other normal circumstances, waiver of all rights, such as the claim of lien and right of retention relating to the main construction,” and Article 11(6) of the instant business agreement prepared in the course of entering into the instant business agreement provides that “The integrated development is prohibited from exercising a lien on new buildings for the reason of the non-payment of construction

(2) The project agreement of this case is concluded for the purpose of clarifying the scope of duties and responsibilities between the contracting parties to the project of this case and efficiently managing trust property and proceeds from sale in this case (the project agreement of this case shall be stated as Article 1; hereinafter the same shall apply). The development of Seongdong Industries shall entrust the receipt, management, and enforcement of project funds and proceeds from sale in lots to the trust of pre-real estate, and shall provide assistance in the work thereof (Article 3(1)6). The advanced comprehensive development shall have the duty to complete the construction within the construction period regardless of the payment of the construction cost as a contractor (Article 3(2)1); the pre-sale real estate trust shall be deemed as an agent for the project of this case; if the management and execution of the project funds of this case, such as proceeds from sale in lots, and construction expenses, etc., under construction works, are carried out smoothly (Article 3(3)4 and 5 of the project agreement of this case); if the advance real estate development project is requested to be paid within two months from the date of request for the development of new real estate development project funds, it shall be paid in writing within one new real estate development project.

③ In light of the structure and language of the instant business agreement and the details of its text and text, the instant business agreement was concluded between the parties to the instant construction project, including Seongdong Industrial Development, the advanced comprehensive development, the career real estate trust, and the science and technology agricultural cooperative. The purpose of the instant business agreement is to promote the stable progress of the sales project by managing the instant real estate trust in order to prevent the new construction of the instant building with the money loaned from financial institutions from appropriating loans and selling the proceeds, or from using the money differently from the order of funding execution stipulated in the instant business agreement. Furthermore, with respect to the advanced comprehensive development as identified by the supervision group, the duty of completion of construction within the construction period is to ensure the stable progress of the construction project by executing the instant comprehensive construction cost, excluding certain expenses, among the funds for the management of the career real estate trust. Accordingly, the obligation to pay the instant construction cost to the Plaintiff for the purpose of promoting the balanced development of the instant construction cost, as well as the obligation to pay the land for the instant construction cost to the Plaintiff for the sake of the development of the instant project and the execution of the instant construction cost.

(4) In particular, the thought Nonghyup, a lending bank, may recognize it in light of the empirical rule that it has been considered as a significant important factor in determining whether to waive the lien of advanced comprehensive development to be actually performed by the Corporation.

⑤ In addition, according to Article 5(1) of the business agreement of this case, death and injury agricultural cooperatives concluded a loan agreement of KRW 4.3 billion with the lending limit of KRW 4.3 billion, and the guarantor of the above loan is an advanced comprehensive development.

(6) The Plaintiff asserts that the agreement on the waiver of lien for advanced comprehensive development was a condition that the construction cost is directly paid from the trust for future real estate. However, the agreement of this case and the waiver of lien do not stipulate the conditions asserted by the Plaintiff. Articles 11(2) and 22 of the business agreement of this case are merely an agreement on the method of payment of construction cost in order to guarantee the payment of construction cost for advanced comprehensive development.

C) As to this, even if the agreement on the waiver of the right of retention is valid, the effect of the agreement is derived from the relationship with the National Agricultural Cooperative, which is the lending bank, and the defendant who purchased the building of this case cannot set up against the plaintiff on the ground that the plaintiff renounced the right of retention. The right of retention is a real right with a large effect, and the waiver of the right of retention, which is a real right, is also effective, and if the agreement on the waiver of the right of retention is to prevent the successful bid of the security due to the establishment of the right of retention, and it is not applied to other than the National Agricultural Cooperative, etc., which is the party to the business agreement of this case, the person who seeks to acquire the ownership of the building of this case in the disposal and realization procedure of the building of this case, intends to acquire the building of this case at a relatively low price taking into account the plaintiff's right of retention. It is reasonable to view that the agreement on the waiver of the right of retention in the disposal and realization procedure of the building of this case was concluded to protect the rights of the creditor, or to prevent the exercise of rights.

3) Sub-decisions

Ultimately, since the Plaintiff cannot be deemed to have the right of retention, the Plaintiff’s claim for confirmation of the existence of the right of retention is without merit.

4. Conclusion

Therefore, all of the plaintiff's claims shall be dismissed as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted and the judgment of the court of first instance is revoked, and all of the plaintiff's claims are dismissed as per Disposition

[Attachment]

Judges Sung-su (Presiding Judge)