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1. The Defendant’s notary public against Nonparty C has the executory power of No. 4 of the 2019 Certificate No. 2019.
Reasons
1. Basic facts
A. On February 23, 2019, the Plaintiff lent KRW 20 million to E, who is the representative of C Co., Ltd. (hereinafter “Nonindicted Company”). Nonparty Co., Ltd. jointly and severally guaranteed the debt. On the same day, the Plaintiff, E, and Nonparty Co., Ltd entered into a contract with the Plaintiff for the purpose of securing the above debt against the Plaintiff by occupying and amending the ownership of the goods listed in the attached Table (hereinafter “instant goods”).
B. On March 20, 2019, the Defendant attached the instant article to F by the Seoul Central District Court on the basis of the authentic copy of a notarial deed with the executory power of No. 4 of the 2019 deed No. 4 of the 2019 document prepared by the Nonparty Company.
[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 2, and 3, the purport of the whole pleadings.
2. Determination
(a) If a security contract for movable property is concluded, and the mortgagee has received delivery by means of possession revision, even before completing the liquidation procedure, the mortgagee is not entitled to use and benefit from the collateral, but may exercise his/her right by asserting that he/she is the owner of the collateral in relation to a third party.
(See Supreme Court Decision 93Da44739 delivered on August 26, 1994, etc.). B.
In full view of the aforementioned legal principles and facts, the Plaintiff, E, and Nonparty Company shall be deemed to have concluded a security agreement on February 23, 2019, which was before the seizure of the instant corporeal movables by the Defendant using the instant notarial deed as its executive title. Accordingly, the Plaintiff may file a lawsuit of demurrer against a third party by asserting the ownership of the instant corporeal movables against the Defendant who conducted compulsory execution.
3. Defendant’s assertion and judgment
A. In order to secure his personal obligation, the Defendant established a security for transfer of movable property owned by Nonparty Company to secure his personal obligation, which constitutes a crime of occupational breach of trust, and the Plaintiff is well aware of this fact.