[2] The case holding that where a subcontractor, who completed construction of the window tion, etc. of multi-household housing, occupies one household among the above multi-household housing in order to receive the balance of the construction cost claims, and exercises a right of retention, such right of retention shall be established with the whole balance of the construction cost claims executed for the entire multi-household housing as the secured claim, as well as the construction cost claims executed

[2] The case holding that where a subcontractor, who completed construction of the window tion, etc. of multi-household housing, occupies one household among the above multi-household housing in order to receive the balance of the construction cost claims, and exercises a right of retention, such right of retention shall be established with the whole balance of the construction cost claims executed for the entire multi-household housing as the secured claim, as well as the construction cost claims executed for

1. Article 320(1) of the Civil Act provides that "a person who possesses an article or securities of another person has the right to retain such article or securities until repayment is made, where a claim arising in respect of such article or securities is due, shall have the right to retain such article or securities." The term "claim arising in respect of such article" here means not only the case where a claim is arising from the object itself, but also the case where a claim arises from the legal relation or fact identical to the right to claim the return of the object, unless it is contrary to the principle of equity, which is the original purpose of the above lien system, and also the case where a claim is arising from the same legal relation or fact as the right to claim the return of the object." Meanwhile, Article 321 of the Civil Act provides that "the lien holder may exercise the right to claim the whole of the secured claim until the full repayment of the claim is made." Thus, the above Article 321 of the

2. According to the reasoning of the judgment below, the court below: (a) based on the facts without dispute between the parties or the evidence employed by the parties, and (b) on February 1, 2002, Nonparty 1 representing each landowner of Eunpyeong-gu one unit (each lot number omitted), contracted the reconstruction of a multi-household house with a total of 7 households and 56 households on each of the above lands; (c) around July 2002, the defendant subcontracted the above reconstruction construction to Nonparty 2 with the above non-party 2 with the title and other miscellaneous parts of the said reconstruction construction (hereinafter “the instant construction”), and (d) around May 203, the defendant completed the instant construction work, and the above non-party 2 paid only KRW 10,00,000 among the total construction cost of KRW 267,387,00,000, the remainder of the construction cost of the housing owned by the non-party 1,57,387,000,000 won, and completed the remaining construction cost of the apartment ownership of the above 3.

Furthermore, the court below held that the above non-party 2 may exercise a lien on the house of this case with the secured claim and the secured claim of this case as long as the claim for the construction work of this case against the non-party 2 remains due to the claim for the construction work of this case which was subcontracted by the above non-party 2, and the claim for the above construction work against the non-party 2 falls under the claim for the house of this case, and even if it is an article owned by a third party other than the debtor of the secured claim, the defendant can exercise a lien on the house of this case with the secured claim of this case. The amount of the secured claim of this case against the non-party 2 as the secured claim of this case, if the owner of the secured claim of this case is a third party, it is inevitable to the extent that the third party's sacrifice is inevitable. Thus, even if the creditor exercises a lien on the secured claim of this case with legitimate title, the scope of its exercise should be strictly limited to the extent recognized to be equivalent to the specific article possessed by the lien of this case 2 of this case, the non-party 205 and the specific object of this case.

3. However, it is difficult to accept the above judgment of the court below for the following reasons.

In light of the legal principles as seen earlier, even if the court below acknowledged that the construction contract in this case is a single construction contract en bloc subcontracted the windows and other parts of reconstruction construction for the above multi-household house, and according to the records, the construction contract in this case was agreed to pay the whole of the construction in lump sum at the time of the construction contract in this case, not to pay the construction cost separately for each same class of sections, but to pay in lump sum for the whole of the construction in this case. The construction work includes not only the windows, doors, etc. for each section, but also the building works for each unit of common building, and the construction works for each unit of common building. The payment of part of the construction cost in this case to the defendant in this case is not a separate payment for the construction cost of the specific section, but also for the remainder of the construction cost in this case to the defendant in this case to the defendant in this case to secure the entire construction cost in this case to secure the remainder of the construction cost in this case to the defendant in this case to secure the whole construction cost in this case to the defendant in this case to secure the whole construction work price in this case to 270.

Nevertheless, the court below held that only KRW 3,542,263 of the construction cost, which the defendant's lien executed against one household of the instant house, was established as the secured claim on the sole basis of such circumstance. The court below erred in the misapprehension of legal principles as to the relation between the claim and the object in the lien under the Civil Act and the indivisibleness of the lien, etc., which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

4. Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)