(영문) 서울중앙지방법원 2011.5.17.선고 2010가합126183 판결

1. The Plaintiff (Counterclaim Defendant) shall deliver to the Defendant (Counterclaim Plaintiff) the part (A) of the attached Form No. 42.88 square meters of the daily life hall E of the part on the part (A) connected with each point of the attached Form No. 1, 2, 3, 4, and 1 among the real estate listed in the attached Table No. 1.

2. All claims filed by the Plaintiff (Counterclaim Defendant) are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff (Counterclaim Defendant).

4. Paragraph 1 can be provisionally executed.

Purport of claim

The principal lawsuit: The Defendant (Counterclaim Plaintiff; hereinafter the Defendant) delivered the Plaintiff (Counterclaim Defendant; hereinafter the Plaintiff) with each point specified in the separate sheet Nos. 1, 2, 3, 4, and 1 among the real estate listed in the separate sheet, to the Plaintiff (Counterclaim Defendant; hereinafter the Plaintiff), and the part of the ship (A) E-2.88 meters connected to the above real estate shall not interfere with the Plaintiffs’ access to and possession of the above real estate. If the Defendant interfered with the Plaintiff’s possession of the above real estate, the amount of money equivalent to KRW 10 million per day shall be paid to the Plaintiff

Counterclaim: This provision shall also apply to the Disposition of Paragraph (1).

Reasons

1. Possession relation to the instant real estate

A. Defendant Republic of Korea (hereinafter referred to as “Defendant”) awarded a contract to H Co., Ltd. (hereinafter referred to as “H”) for the construction work of G G building located in the Seoul High-gun F (hereinafter referred to as “instant building”), and H et al. awarded a subcontract for the interior interior interior decoration part among the above construction work, and H et al. awarded a subcontract to Plaintiff A for metal construction work, the household construction part to Plaintiff B, the glass construction part to Plaintiff D, and the lighting construction part to Plaintiff C.

B. The plaintiffs asserted that they did not receive the construction price from I on May 10, 2010. The plaintiffs' employees J, K, L, and Eul's employees M, plaintiffs C, plaintiffs et al. attached to the building of this case (as stated in the attached list, part 42.8m 42.8m hereinafter "the real estate of this case") connected each point in the daily life hall E (as indicated in the attached drawing No. 1,2,3,48m 1) within the building of this case, the plaintiff et al. attached a banner to the effect that "in the exercise of the right of retention" during the construction cost due to unpaid construction cost, and from May 14, 2010 to June 18, 2010, L and N were permanently stationed in the real estate of this case with the order of the plaintiffs and the owner of this case who occupied the real estate of this case and submitted it to the court of acceptance on June 10, 2010 after the completion of the provisional disposition of this case's possession.

By returning possession to the plaintiffs, the plaintiffs currently possess the real estate of this case.

D. This Court revoked the provisional disposition acceptance in the case of the application for provisional disposition revocation on January 20, 2011, 2010Kahap3567.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, 9, 10, 17, 18, Eul evidence Nos. 1 and 3, Gap evidence Nos. 11, 14, and 15, the witness's testimony and the purport of the whole pleadings

2. Determination on the main claim

A. Summary of the plaintiffs' assertion

Since the commencement of possession of the instant real estate on June 10, 2010 by the lien for the purpose of preserving the claim for construction cost due to the failure to receive construction payment due to the default of one of the Plaintiffs, despite the completion of re-subcontracts, H forced the Plaintiffs to leave on June 18, 2010, and deprived the Plaintiffs of possession by occupying the instant real estate. On June 30, 2010, H transferred the instant real estate to the Defendant on June 30, 2010. Since the Defendant knowingly occupied the instant real estate by delivery from H with the knowledge that H was deprived of possession, it is obligated to return the instant real estate to the Plaintiffs pursuant to Article 204(1) and (2) of the Civil Act.

B. Legal principles as to the claim for possession recovery and the issues of the main claim

If an occupant was deprived of his/her possession, he/she may demand the return of the article in accordance with Article 204(1) of the Civil Act. In such a claim for the recovery of possession, it is exempted from examining whether the claimant was in possession of the article at the time when the occupant asserts that he/she left the possession. Whether the claimant actually possessed the right of retention, etc. alleged as the ground for possession does not affect the determination of the propriety of the claim for recovery of possession (see, e.g., Supreme Court Decision 2010Da18294, Jul. 15, 2010).

Therefore, it does not affect the validity of the claim for recovery of possession of the instant real estate, as to whether the Plaintiffs owned a lien on the instant real estate, and thus, it is first examined whether the Plaintiffs occupied the instant real estate at the time of June 18, 2010, and whether H deprived of possession.

C. Determination

(1) Determination as to whether the plaintiffs occupied

Generally, possession refers to an objective relationship that shows that an object belongs to a person's factual control under the generally accepted social norms, and in order to have a de facto control, it does not necessarily mean that an object is physically and practically controlled, but should be judged in conformity with the concept of society by taking into account the time, space and principal relation with the object, possibility of excluding others' control (see, e.g., Supreme Court Decision 95Da8713, Aug. 23, 1996).

The plaintiffs asserted the right of retention on May 10, 2010 and began to stay with a banner "in the course of exercising the right of retention due to the failure to pay the construction cost to the real estate of this case" and from May 14, 2010, L and N reside in the real estate of this case by June 18, 2010. As seen above, L and N actually controlled the real estate of this case on June 18, 2010. Accordingly, since L and N in receipt of the plaintiffs' instructions, they should be deemed to have occupied the real estate of this case through L and N, an occupation assistant, at that time.

(2) Determination as to whether H’s possession was deprived

Comprehensively taking account of the written evidence Nos. 9 and 10 and the purport of the entire argument as to the testimony of the witness No. 0, Jun. 18, 2010, H issued a written confirmation to the Plaintiffs on June 18, 2010, stating that “H shall have claimed that the exercise of the right of retention under subparagraph E is illegal due to the reasons such as the completion of the remaining construction work in the city where it is impossible for the Plaintiffs to visit the living room No. 11:30 minutes or more at 0:00,000, and forced the transfer of N and L 2 to the public.” It is difficult to acknowledge that the Plaintiffs sent the written confirmation to the Minister of Gender Equality on June 18, 2010, stating that “H is forced to take possession of high houses over which H exercises is exercising the right of retention.” However, considering the witness’s testimony, it is difficult to view that the Plaintiffs did not have any physical conflict with the employees of the instant bus in light of the overall purport of pleading.

D. Intermediate conclusion

Therefore, it is difficult to view H’s deprivation of possession by the Plaintiffs, and therefore, the claim of this case filed by the Plaintiffs on the premise that H has deprived of possession of the Plaintiffs’ real estate in this case is without merit without any need to examine further.

3. Judgment on a counterclaim

Therefore, barring any special circumstance, the Plaintiffs are obligated to deliver the instant real estate to the Defendant, as seen earlier, inasmuch as the fact that the instant real estate owned by the Defendant is currently occupied by the Plaintiffs.

As to this, the plaintiffs defense that the right of retention on the real estate of this case has a right to continue possession of the real estate of this case, so long as there is no evidence to deem that the plaintiffs lost possession on June 18, 2010, the plaintiffs lost possession on the real estate of this case, as seen earlier (the plaintiffs occupied the real estate of this case in accordance with the decision of acceptance of provisional disposition of possession, but did not recognize the defendant's deprivation of possession in this case, which is the main decision of this case, it cannot be deemed that the plaintiffs ultimately recovered possession of the real estate of this case. The plaintiffs also sought possession recovery against the defendant of this case after their own cancellation of provisional disposition order of this case). Even if the plaintiffs had a right of retention on the real estate of this case, the right of retention was extinguished due to the loss of possession of this case, regardless of whether the right of retention was established, the defense of the plaintiffs is without merit.

4. Conclusion

If so, the plaintiffs' claims against the principal lawsuit are without merit, all of them are dismissed, and the defendant's counterclaim is justified.