[2] Requirements for becoming the secured claim of the right of retention

1. As to Defendant 1’s ground of appeal

A. The elements for establishing a lien under Article 320 of the Civil Act, and possession, which is the requirement for existence, refers to an objective relationship in which an article appears to be subject to the factual control of that person under the common sense of society. In this context, a factual control is not necessarily limited to physical or practical control over an article, but should be determined in conformity with the concept of society by taking into account the time and spatial relationship with the article, the relationship between principal and a person, the possibility of exclusion from control of others, etc. (see, e.g., Supreme Court Decisions 95Da8713, Aug. 23, 1996; 2009Da39530, Sept. 24, 2009). Furthermore, the possession of the above provision includes not only direct possession but also indirect possession.

B. According to the reasoning of the judgment below, the court below determined as follows: (1) on December 9, 2005, the first instance court Co-Defendant 1, Co-Defendant 1, 200, Co-Defendant 1, Co-Defendant 2 (hereinafter “Co-Defendant 1”) supplied new buildings listed in paragraphs 2 and 6 of the attached Table 1 of the judgment below (hereinafter “instant hotel”) to Defendant 1 on February 14, 2006; (2) on June 2, 2006, Defendant 1 had a right to claim for the construction cost of sewage of KRW 70,000,000,000 after the completion of the instant construction work for 10,000,000,000 won to Non-Party 1, 70,000,000,000 won to Non-Party 1, 1, 206, which had been assigned to Non-Party 1, 2,000,00 won.

C. Examining the reasoning of the judgment below in light of the records in this case and the legal principles as seen earlier, the court below is just in holding that Defendant 1, based on the above fact-finding, delegated all rights on the possession, use, disposition, etc. of the hotel of this case to the owner Nonparty 1 on November 17, 2006, prior to the registration of the entry in the order to commence the auction of this case, and met the requirements for the establishment of the right of retention by indirect possession of the hotel of this case through Nonparty 2, etc. through Nonparty 2, etc.

2. As to the ground of appeal against Defendant 2

A. Article 320(1) of the Civil Act provides, “A person who possesses an article or securities of another person shall have the right to retain such article or securities until the time when a claim arising in respect of such article or securities becomes due and due, shall have the right to obtain reimbursement.” Thus, the secured claim in a lien shall be “a claim arising in respect of such article” (see, e.g., Supreme Court Decision 2011Da96208, Jan. 26, 2012).

B. (1) According to the reasoning of the lower judgment, the lower court acknowledged that Defendant 2 had a claim for construction cost equivalent to KRW 48,437,00 as a result of the completion of the installation of a signboard, etc. on the outside of the instant hotel building by sewage from the Samdo General Construction, and determined that Defendant 2’s above claim was also a claim arising from the instant hotel as a secured claim, which is also a claim arising from the instant hotel, and thus, Defendant 2’

(2) However, we cannot accept the above judgment of the court below as it is.

Even according to the reasoning of the lower judgment, the secured claim of the instant lien, as asserted by Defendant 2, is a claim arising from the completion of works to install outside signboards, etc. of the hotel of this case in accordance with a subcontract agreement with the third comprehensive construction division. However, in the case of signboards installed on the rooftop, outer wall, etc. of a building, it can be sufficiently possible to separate the building from the building without incurring excessive costs, and in such a case, the claim for the cost of installing the signboard itself cannot be deemed as a claim arising from the building, unless there are special circumstances.

Therefore, the lower court should have deliberated on the type and form of the signboard installed by Defendant 2, the content of the installation of the signboard, etc., clarify whether the signboard is a part of the hotel building of this case or a separate independent object, etc., and then should have determined whether Defendant 2’s claim can be a secured claim under the lien regarding the hotel of this case.

C. Nevertheless, without sufficiently examining this point, the lower court concluded that the claim for the price due to Defendant 2’s installation work for the hotel of this case can be a claim arising from the hotel of this case, which was secured by the lien of this case. It did not exhaust all necessary deliberations as to the relation between the secured debt and the goods, which are the elements for establishing the lien.

3. Conclusion

Therefore, the part of the judgment below against the plaintiff as to defendant 2 is reversed without examining the remaining grounds of appeal, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed. The costs of appeal to the Supreme Court are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)