In a case where a contractor who has been awarded a contract for new construction of a building has been suspended from construction in a state where he/she installed any fixtures on the land, whether the contractor may exercise the lien on the said fixtures or land (negative)

Articles 320 and 664 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 16219 decided Sep. 15, 1995 (Gong1995Ha, 3395)

Han-ro Construction Co., Ltd. (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Other Party

Chuncheon District Court Order 2006Ra47 dated January 4, 2007

The reappeal is dismissed. The costs of reappeal shall be borne by the re-appellant.

The grounds of reappeal are examined.

1. As to the grounds for reappeal claiming the establishment of the right of retention

If a contractor who has built a new building occupies the building and claims for the construction proceeds arising from the building, the contractor has the right to retain the building until his/her claims are paid (see Supreme Court Decision 95Da16202, 16219, Sept. 15, 1995, etc.). However, in cases where a contractor who has been awarded a contract for the construction of a new building has installed on the land that cannot be viewed as an independent building under the generally accepted social norms and the construction has been interrupted, the said fixtures are merely corresponding to the land, and they cannot exercise the right of retention for such fixtures. In addition, since the construction proceeds accrued until the discontinuance of the construction works, the contractor cannot exercise the right of retention for the land based on the above construction proceeds claim.

According to the records, the re-appellant's contract was concluded with the landowner to newly construct a factory on the land of this case and the construction of the foundation was suspended due to the progress of the auction procedure on the land of this case under the condition that a structure that cannot be seen as an independent building under the social norms while carrying out the construction works. In such a case, the above structure is merely an accessory to the land, and thus cannot exercise a lien on the land of this case. The construction payment claim against the land owner until the discontinuance of construction is completed is merely a new construction of a factory building, and since the above land is not generated, it cannot exercise a lien on the land of this case based on the above construction payment claim. Accordingly, the order of the court below which rejected the Re-appellant's claim of lien on the land of this case and maintained the delivery order of this case is just, and there is no violation of the Constitution, laws,

2. As to the reappeal that asserts the establishment of commercial lien

Article 58 of the Commercial Act provides, “If a claim arising from a commercial activity between merchants has become due, the obligee may, until he has received repayment thereof, retain things or securities owned by the obligor which are possessed by him through a commercial activity with the obligor.” Thus, if the obligee has acquired possession of an object for any reason other than a commercial activity with the obligor, the commercial lien cannot be established.

According to the records, the Re-Appellant appears to have opened the construction site after the new construction of the factory building was suspended by auction of this case and excluded another person's control and actually commenced possession of the land of this case. The Re-Appellant is difficult to view that the Re-Appellant acquired possession of the land of this case on the ground of "commercial activity with respect to the land of this case" due to land owner and "commercial activity with respect to the land of this case. Therefore, the Re-Appellant cannot exercise commercial lien on the land of this case. Therefore, the grounds for reappeal based

3. Conclusion

Therefore, the reappeal is dismissed. The costs of reappeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ran (Presiding Justice)