[1] The institutional purpose and limitation of the lien, which is the highest priority priority security right

[2] In a case where a mortgage or other security right has already been established on the object owned by the debtor, and the creditor intentionally trades with the debtor in order to satisfy the requirements for establishment of the right of retention in order to satisfy his/her own claim priority, and the right of retention is established by occupying the object, whether it is permissible to claim the right of retention to the mortgagee, etc. (negative), and in such a case, whether the mortgagee, etc. may claim the confirmation of the absence of the right of retention by a lawsuit for the purpose of

[3] The case affirming the judgment below holding that in case where Byung corporation, which was the second-class collateral security right, established the first-class collateral security right in the name of bank Eul with respect to the building owned by the debtor Gap corporation, but was reported the right of retention at the auction procedure commenced upon the request of bank Eul corporation which was the second-class collateral security right under a lease contract for part of the building Eul corporation and possessed part of the building Eul corporation, the claim of right of retention

[1] Under our law, the lien system recognizes the right holder’s ability to continuously possess the object, above all, (see, e.g., Article 320(1) of the Civil Act; Article 91(5) of the Civil Execution Act). Therefore, a person who intends to take over an object based on ownership, etc. (the possession of an object is a premise for realizing the value of use and profit in most cases) cannot take over the object unless the lien is extinguished due to satisfaction of the secured claim held by the right holder, etc. Therefore, the person who actually takes over the object cannot take over the object. As such, the lien is intended to indirectly secure the satisfaction of the right holder’s claim. However, real estate security rights, such as mortgage, etc. under our law, are so-called non-Possession security rights established and maintained without possession by the right holder, and in fact, possession of the object is very rare. Accordingly, even if a third party has established a security right subsequent to the establishment of a mortgage right, such as mortgage, etc., the person who actually takes over the object can acquire it in the same way as the general right holder’s right.

A right of retention is not established by a contract between the owner of an object and the creditor, but rather an objective requirement prescribed by the Act (see, e.g., Article 320(1) of the Civil Act, Articles 58, 91, 111, 120, and 147 of the Commercial Act). The so-called statutory security right arising from dancing with the legal requirement (see, e.g., Articles 120(1) and 58, 120, and 147 of the Commercial Act). It is based on the fact that the Act provides a lien system and imposes an obligation on the above transaction, which is to ensure preferential satisfaction with the lien, has special protection value. For example, such protection is based on the language and text of Article 320(1) of the Civil Act that provides an objective relationship between the possessor’s claim and the object (i.e., “claim arising from the object’s claim” (see, e., Article 320(1) of the Civil Act). Furthermore, the commercial lien as defined in Article 58 of the Commercial Act requires the obligor’s claim to be established based on a commercial activity.

In light of the above circumstances, in relation to the lien system, the parties to the transaction intentionally forged the lien for their own interest, thereby unfairly using the status as the top priority security right as seen earlier and distort the concept of the law relating to the overall security order. Considering the specific circumstances of individual cases, the exercise of the lien for abuse of the lien system, which is assessed against the principle of good faith, should not be permitted, should be taken into account comprehensively considering the specific circumstances of individual cases.

[2] In a case where a lien is established by intentionally causing transactions between the debtor and the debtor in a vulnerable financial position that meet the requirements for the establishment of the lien and allowing the mortgagee to occupy the object accordingly, barring any special circumstances, the claim of the lien against the mortgagee is not allowed as an exercise of the right or an abuse of the right against the good faith principle unless there are other special circumstances. In addition, in a case where the mortgagee, etc. may file a claim for the confirmation of the absence of the lien in order to exclude the above lien in the auction procedure or in the execution procedure of the claim, the mortgagee, etc. by seeking a confirmation of the absence of the lien.

[3] In a case where Eul corporation, which was the second-class collateral security right, established the first-class collateral security right under the name of Eul bank as to the building Eul corporation, but Eul corporation, which was the second-class collateral security right, concluded a lease contract on part of Eul corporation and owned part of Eul corporation, and reported the right of retention at the request of Eul bank, the case affirming the judgment below that Byung corporation, which was the first-class collateral security right holder, concluded a lease contract prior to the completion of the registration of the decision on commencement of auction, occupied part of Byung corporation's building; Byung's claim against Byung corporation, which had already arrived at the expiration of the lease term at the time of the lease contract as a claim for commercial activity between Byung corporation and Eul corporation, was acknowledged as a result of commercial activity against Eul corporation, which was the debtor; however, Byung corporation was entitled to possess part of the building which was the object of retention until it was repaid to Gap corporation's claim for the right of retention; however, in light of the following circumstances, Byung corporation's establishment of mortgage on the above building; the circumstance and contents of the lease agreement;

[1] Article 320(1) of the Civil Act, Articles 58, 91, 111, 120, and 147 of the Commercial Act, Article 91(5) of the Civil Execution Act / [2] Articles 2 and 320(1) of the Civil Act, Article 250 of the Civil Procedure Act / [3] Articles 2 and 320(1) of the Civil Act, Article 58 of the Commercial Act

[1] Supreme Court Decision 2008Da70763 Decided January 15, 2009 (Gong2009Sang, 158) / [2] Supreme Court Decision 2004Da32848 Decided September 23, 2004

Busan High Court Decision 200Na14484 decided May 1, 200

Gyeongnam Savings Bank (Law Firm Cheongn Law, Attorneys Gyeong-dilution et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2011Na2449 decided September 20, 2011

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. A. A. Under our law, the lien system recognizes a large and detailed authority that allows the right holder to retain and continue to possess the object, above all, (see, e.g., Article 320(1) of the Civil Act and Article 91(5) of the Civil Execution Act). Accordingly, a person who wishes to take over an object based on ownership, etc. (the possession of an object is a premise for realizing the profit-making value in most cases) cannot take over the object unless the lien is extinguished due to satisfaction of the secured claim held by the lien holder, etc. As such, the lien is practically forced to perform its obligation. As such, the lien is indirectly intended to secure the satisfaction of the claim by the lien holder.

However, under our law, a security right such as a mortgage can be established and maintained as a so-called non-Possession security without possessing the object, and in fact, possession of the object by the mortgagee, etc. is very rare. Therefore, even in a case where a security right is established, such as a mortgage or mortgage on any real estate, a third party may acquire the right by occupying the object after the creation of the security right. As such, even in a case where a security right is established after the establishment of a mortgage, the lien holder may exercise the right of refusal of extradition against the owner of the object including the purchaser of the object in the process of executing the mortgage (see, e.g., Supreme Court Decision 2008Da70763, Jan. 15, 2009). Accordingly, a real estate lien act as a de facto priority security right in most cases, so that a lien can be obtained by having a claim first satisfied as well as a general creditor, etc. after the establishment of the mortgage.

In this case, a person who, prior to the establishment of a right of retention, has been granted a security such as a mortgage and provided a credit may suffer from a significant drop in the value of the security, different from that he anticipated and calculated at the beginning. As such, the right of retention is recognized as an exception to the general legal principle that “the person who is prior to the time is prior to the right,” and is prepared at the risk of imposing a certain burden on the real estate security transaction.

B. The right of retention is not established by a contract between the owner of an object and the creditor, but is so-called statutory security right arising from dancing with the objective requirements prescribed by the law (see, e.g., Article 320(1) of the Civil Act and Articles 58, 91, 111, 120, 147 of the Commercial Act).

The Act provides a lien system and imposes a burden on the above transaction is based on the fact that there is a special protection value on the secured claim that is to secure preferential satisfaction by the lien. For example, in the case of civil lien under Article 320 of the Civil Act, such protection is acknowledged from the fact that there is a special relationship between the possessor’s claim and the object (i.e., “claim arising in relation to the object” according to the language and text of Article 320(1) of the Civil Act, i.e., the so-called “a special relationship between a claim and an object.” Furthermore, the commercial lien under Article 58 of the Commercial Act is established only by a person who has a claim arising from a commercial activity between merchants and the debtor’s commercial activity (the commercial activity is not required to be a commercial activity that causes the occurrence of a claim) and that the scope of recognition is considerably broad than that of civil lien demanding the so-called relation between the object and the secured claim.

C. In light of the above circumstances, in relation to the lien system, the parties to the transaction intentionally forged the lien for their own interest, and thus using it as the top priority security interest in the above lien unfairly and distort the concept of the law relating to the overall security order. In response to these risks, the exercise of the lien for abuse of the lien system, which is assessed as contrary to the principle of good faith, shall not be permitted, in full view of the specific circumstances of individual cases, taking into account, should be taken into account.

In particular, in a case where a lien is established by intentionally causing transaction between the debtor and the debtor in a vulnerable financial position to satisfy the requirements for the establishment of the lien and allowing the mortgagee to occupy the object accordingly, barring any special circumstances, the assertion of the lien against the mortgagee is not allowed as an exercise of the right or an abuse of the right against the good faith principle unless there are other special circumstances. In addition, in a case where the mortgagee, etc. may file a claim for the confirmation of the absence of the lien in order to exclude the above lien from the auction procedure or other bond execution procedure (see, e.g., Supreme Court Decision 2004Da32848, Sept. 23, 2004).

2. The lower court determined as follows.

A. The lower court acknowledged the following facts.

(1) On March 31, 2003, the Korea Development Bank established the first priority collective security right in Japan with respect to the instant building and its site, and machinery and equipment installed in the instant building on March 31, 2003, which was owned by the Yong Water Accounting Co., Ltd., with a view to securing the claim for loans to Yong Water Accounting Co., Ltd. (hereinafter “Yan Property Accounting”), which was established by the Factory Mortgage Act with regard to the maximum debt amount, 750

Since December 19, 2008, the British Real Estate Distribution notified the payment of interest on the above loan claims from December 19, 2008, and the repayment of the loan from the 31st of the same month, and the Korea Development Bank notified the repayment of the loan on February 18, 2009, that "the interest on the loan was lost as of January 30, 2009," and applied for a voluntary auction on the instant building and its site, and on the machinery and equipment installed in the above building on April 13, 2009 (the Busan District Court Decision 2009Da16352). The Busan District Court decided to voluntarily commence the auction on the 14th of the same month, and the registration of the decision to commence voluntary auction was completed on the 15th of the same month (hereinafter "auction").

On November 26, 2009, the Korea Development Bank transferred the above-mentioned first-class collateral and secured debt to the Plaintiff, a special purpose company subject to the Asset-Backed Securitization Act, and registered this on the same day with the Financial Services Commission in accordance with the provisions of the above Act, and notified the transfer of credit to the foreign currency, the Plaintiff succeeded to the status of the Korea Development Bank in the auction procedure in the above auction

Meanwhile, according to the appraisal conducted by the Korea Appraisal Board at the request of the Korea Development Bank on May 2, 2007, the value of the building in this case was 5,160,703,800 won, the value of the building in this case was 2,595,400,000 won, and the value of the machinery and instruments installed in the building in this case was 598,260,000 won, and the land for the building in this case was 598,260,000 won on November 6, 2008.

(2) On June 7, 2004, the Defendant was set up the second priority collective security right, which is the maximum debt amount of 1.3 billion won, pursuant to the Factory Mortgage Act, with respect to the same object of the building, etc. of this case, from the Yong real estate acid, to secure a loan claim, etc. against the Yong real estate realization.

Meanwhile, from December 2006 to January 2008, the Defendant loaned approximately KRW 7,300,000,000 to the Young physical acid in accordance with the credit transaction agreement, and as security, made up a notarial deed on the fishery products, such as high-water, cryp, cryp, and so on owned cryp acid and stored in the building of this case from the Young physical acid as security for transfer.

On July 15, 2008, the defendant conducted a inventory inspection with respect to the above fishery products received as a security for transfer on the basis of a certificate of inventory received from the Young Water Distribution, and found that the fishery products subject to security for transfer fall short of the fishery products, and on July 17, 2008, the defendant demanded to provide a security for the shortage of security or to repay the corresponding amount to the representative director of Young Watersan, a joint and several surety, for the shortage of security. After that, since November 2008, the Young Water Distribution did not pay interest on the loan to the defendant since November 2008 due to the delinquency in payment of interest on the loan from the defendant since the date of the above credit transaction agreement between the defendant and Young Water Distribution, even though the obligation, such as the loan, etc. to the defendant of Young Water Distribution, was lost due to the loss of the payment period of all due to the expiration of the payment period of all the credit transaction agreements between the defendant and

(3) On December 15, 2008, the Defendant entered into a lease contract with the purport that the part of the building of this case (hereinafter “the subject matter of this case”) between the Young Water Distribution and the Young Water Distribution (hereinafter “the subject matter of this case”) shall be KRW 3 million without a deposit, but the monthly rent shall be KRW 1.5 million between the starting date of the lease (hereinafter “the lease contract of this case”). The Defendant dispatched Nonparty 2, one’s employee on the date of the above lease contract, to the present day, to occupy the subject matter of this case through Nonparty 2. The Defendant reported the right of retention on May 14, 2009.

B. First of all, the lower court acknowledged that the Defendant had a lien on the subject matter of the instant detention. That is, the instant lease agreement was concluded between the Defendant and the Young Real Estate Distribution on or before April 15, 2009, when the entry registration of the said decision on commencing auction was completed, and the Defendant occupied the subject matter of the instant detention through his employees from the time when the instant lease agreement was concluded to the present date. The Defendant’s claim for loans against Young Property Distribution had already arrived at the maturity of the said lease agreement as a claim arising out of commercial activities between the Defendant and the Young Property Distribution, a merchant, and the Defendant’s act of leasing the subject matter of custody pursuant to Article 47 of the Commercial Act was recognized as a result of commercial activities against Young Property Distribution, which is the debtor, and thus, the Defendant has the right to possess the subject matter of the instant detention until the repayment of the claim for loans against Young Property Distribution

Furthermore, regarding the Plaintiff’s assertion that the Defendant’s exercise of the right of retention runs counter to the principle of good faith. In light of the relationship between the commercial lien holder and the debtor, if there are special circumstances to deem that commercial activities were conducted for the purpose of causing the right of retention, not for the normal business among merchants, the exercise of the right of retention should not be set up against the secured right holder prior to the establishment of the right of retention. Considering the following circumstances, the establishment of mortgage on the instant building, the circumstance leading up to the conclusion of the instant lease agreement between the Defendant and the real estate 10, and the circumstances leading up to the conclusion of the instant auction, the Defendant would have been sufficiently aware of the fact that the auction procedure on the instant building would have been immediately commenced, and thus, the instant lease agreement was concluded at the request of the Korea Development Bank, which was a senior secured right holder, and thus, the Defendant would have been deemed to have been transferred the possession of the instant object of retention. Accordingly, the Defendant would not have been able to claim arrears from the Busan High Court for the purpose of sale of the instant object of auction.

3. In light of the above legal principles, the above judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to lien or mortgage, or the principle of good faith, as otherwise alleged in the grounds of appeal.

4. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)