News E.S. News E.C.

3. Judgment (Attorney Jeong-hee, Counsel for defendant-appellant)

July 9, 2008

1. The defendant received gold KRW 9,315,412,150 from the plaintiff and simultaneously ordered the plaintiff to order the building listed in the attached Table 2 to the plaintiff.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph (1) may be provisionally executed.

The defendant ordered the plaintiff to issue an order to the building listed in the attached Table 2, and from May 12, 2007 to the completion date of the order for the above building, 85,000,000 won per month and 5% per annum from May 12, 2007 to the pronouncement date of this case and 20% per annum from the next day to the completion date of the order for the above building.

1. Basic facts

The following facts are not disputed between the parties, or found in Gap evidence 1 through 9 (including paper numbers), evidence 15-1, 2, Eul evidence 1 through 3 (including paper numbers), Eul evidence 5-1, 2, Eul evidence 7, Eul evidence 8-1, and Eul evidence 8-2, and there is no counter-proof.

A. On July 29, 2002, the Defendant: (a) removed the buildings listed in paragraph 5 (5) of the attached Table 2 (hereinafter “former Building”) constructed on the land listed in paragraph 1 of the attached Table 1 (hereinafter “instant new building”) owned by UPC Co., Ltd. (hereinafter “SP”) from Non-Party UPC Co., Ltd. (SP Co., Ltd., Ltd., and changed UPC into UPS Co., Ltd. on September 17, 2003; and (b) agreed that the construction price should be divided into six times for each new building on each land listed in paragraphs 1 through 4 of the same Table (hereinafter “instant new building”).

B. Since August 15, 2002, when the payment of the agreed construction cost has been delayed due to the shortage of funds from the time when the said new construction was commenced and executed, the Defendant temporarily suspended the said new construction around April 5, 2003, but the contract was concluded on September 17 of the same year by changing the original construction cost into the period on July 31, 2004, the above construction cost was 9,460,000, and the construction period was 19,000,000 and the construction period was 20,000,000 until September 20, 2004, and the new construction was 9,63,50,000,000 and the new construction period was 20,0000,000 or more, and it continued to be 205,000,0000,000 or more new construction before the expiration of the construction period was 9,205,000.

C. Accordingly, on August 19, 2005, U.S. entered into a notarial deed with the Defendant on the settlement of the balance of the construction work at KRW 9,591,50,000,000, and on September 30, 2005, which contains such contents. On October 5, 2005, the Defendant was issued an attachment and assignment order for the amount of KRW 664,575,00 among the refund of U.S. value-added tax on the original copy of the notarial deed under the Daegu District Court Port Branch Branch of 2005TB2940, but U.S. received the remainder of 268,046,480,000 from national taxes due to the default of national taxes, and thereafter, the Defendant received the payment of KRW 8,041,370,000,000,000 from the Corporation and received the payment to the Corporation 15,151,1505.

D. On the other hand, on May 7, 2002, U.S. took out a loan from the bank of Korea (hereinafter “Korea bank”) with the amount of money for each land and each building of this case as joint collateral listed in attached Tables 1 and 1,820,000 with respect to each of the above real estates, and on the same day, U.S. established a right to collateral security with respect to each of the above real estates with a maximum debt amount of KRW 1,820,00,000. On the same day, U.S. filed a registration with respect to each of the above lands with respect to the Defendant, and on October 21 of the same year, U.S. established superficies on each of the above lands with respect to our banks.

E. On August 30, 2002, U.S. took out a loan from the non-party 3 and paragraph (4) of the attached Table 1 with the money as joint collateral from the non-party 3 and paragraph (4) of the same Article, U.S. separately set up the right to collateral security and superficies with a maximum debt amount of KRW 750,00,000 with respect to each of the above lands, and on the same day, U.S. filed a registration of the right to collateral transfer with respect to each of the above lands with the Defendant on the same day.

F. On October 22, 198 of the same year, Schron created a right to collateral security with a maximum debt amount of KRW 560,000,000 with respect to each of the above lands, when he/she took out a loan from Nonparty 1 and Nonparty 1 as a joint collateral with each of the lands listed in [Attachment 1] List 1 to 4.

G. On the other hand, the defendant cancelled each of the above provisional registration in the name of the bank immediately before establishing the right to collateral in the name of the new Saemaul Bank under the name of the new Saemaul Bank, such as the above sub-paragraph (d) and the above sub-paragraph (f) at the request of the U.S., and subsequently, after establishing the above superficies and the right to collateral security, the above provisional registration was completed again in the name of the right to claim the transfer of ownership based on the pre-

H. However, on or around April 2005, KIB failed to repay the principal and interest of loan to KIB, and KIB requested voluntary auction of each land listed in the separate sheet No. 1 and No. 1 and No. 2 of the separate sheet No. 1 and No. 2 of the separate sheet No. 20053 and the above auction procedure was in progress at the Ulsan District Court around 2005, 953. On July of the same year where KIB had been in progress the above auction procedure, the voluntary auction of each land listed in the separate sheet No. 3 and No. 1889 of the same court, and around December of the same year, the defendant applied for compulsory auction of each land listed in the separate sheet No. 1 and No. 34195 of the new building of this case, and the plaintiff acquired the ownership of each new building and acquired the ownership of each of the new building in the separate sheet No. 2005 and the new building of this case.

I. On the other hand, around June 15, 2006, when the above auction procedure was in progress, the defendant reported the lien that he occupies the new building of this case on the lien with the right to preserve the above claim for the payment of the remainder of the construction in the auction court as the right to be preserved. The plaintiff continued to occupy the said new building after obtaining a successful bid for the said new building and acquiring the ownership thereof.

2. Judgment on the plaintiff's claim

A. Part demanding the evacuation of a building

(1) According to the above facts, the defendant occupies the new building of this case even until the date of closing argument of this case. Thus, barring any special circumstance, the owner of the said new building has the obligation to order the plaintiff, who is the owner of the said new building, to establish the

(2) As to this, the defendant asserts that he has the right to attract the said new building until he receives the payment for the remaining construction costs of 9,315,412,150 won, since he/she has a claim for the remaining construction costs of YY.

As seen earlier, the Defendant had a claim amounting to KRW 9,315,412,150 of the remainder amount of the construction work against Scam. In full view of the entries and arguments in the evidence Nos. 6-1 through 21 of the evidence No. 6-1, the Defendant occupied the said new building after acquiring possession from Scamcam on October 2005, and occupied the said new building at the outside wall of the said new building, with the content that “the (ju) of the building is the area in which the lien is exercised.” On the outside wall of the said new building, the Defendant posted the above notice at the entrance of the said new building, and controlled the entry by installing a protective window, etc. on the outside wall of the said new building. Therefore, the Defendant has no right to attract the said new building until he received the payment of the remainder amount of the construction work arising from the said new building (in the above auction procedure, there is no evidence that the payment of all or part of the remainder amount of the above construction work has been extinguished).

(3) On this ground, the plaintiff argues that although the defendant cancelled all of the provisional registrations made in his name immediately before the establishment of superficies and the right to collateral on the name of the new Saemaul Depository in the name of Korea bank at his request, the above superficies and the right to collateral on collateral has been established, again after making a provisional registration in his name, the plaintiff's assertion that he would not claim any right, such as a right to collateral, against the bank and the new Yangyang Saemaul Depository, which is a senior real right holder, should not be permitted to claim a right of retention again against the principle of good faith, although he renounced his right of retention. However, the plaintiff's assertion on the above ground that the circumstances and evidence required by the plaintiff alone alone are insufficient to conclude that the defendant renounced the right of retention as alleged by the plaintiff or that the defendant's assertion on the right to collateral is against the principle of good faith, and there is no other evidence sufficient to acknowledge it. Thus, the plaintiff's argument is without merit.

In addition, the plaintiff argues that the defendant has no lien on the new building of this case by applying or applying Article 320(2) of the Civil Act or by applying mutatis mutandis Article 320(2) of the Civil Act, since the defendant voluntarily removed the above old building without the prior consent or approval of the bank, which is a mortgagee of the right to collateral security against the building of this case, and occupied each land of this case on each land listed in the attached list 1 through 4, which is the right to collateral security against the building of this case. However, it is insufficient to conclude that the defendant arbitrarily removed the old building of this case and occupied the land which is the object of the superficies without the permission of the bank. In full view of the purport of the argument stated in the attached list 1 and 1, it is insufficient to conclude that the defendant arbitrarily removed the previous building of this case and occupied the land which is the object of the superficies without the permission of the bank. On the other hand, it is recognized that the Korean bank consented to the removal of the new building of

In other words, the Plaintiff is aware that the status of each land listed in the separate sheet Nos. 1 through 4 as above is not good for the Defendant, and thus, there is a possibility that the auction procedure for each of the above lands will begin for the future. However, even though U.S. entered into a construction contract with U.S. and newly constructed new building in consideration of large costs, the Plaintiff occupied the said new building under the pretext of exercising lien. In such a case, if the right of retention is acknowledged without any restriction on the establishment of lien, there is no way to prevent implied collusion between the former owner and the lien holder from abusing the abuse of lien due to an implied collusion or any other cause, and thus, there is a risk of disturbing the order of security law based on the principle of public notice. Considering that there is no possibility that the Defendant would disrupt the order of public notice because Article 320(2) of the Civil Act is analogically applied to the relationship with the Plaintiff, who is the purchaser of the auction procedure at the request of the Korean bank, etc. which completed the registration of the establishment of mortgage prior to the Defendant’s construction contract, the Plaintiff’s assertion or the right of lien cannot be asserted.

In addition, the plaintiff argues that the defendant applied for a compulsory auction for the new building of this case for the recovery of the price of the remaining construction, and that the appraised value of the said new building of this case was reflected in the sale price and awarded a successful bid to the plaintiff in the above auction procedure, the defendant is sufficient to receive dividends equivalent to the remaining construction price from the above sale price paid by the plaintiff, and further he cannot exercise the right of retention for the plaintiff on the ground of the above remaining construction price. However, it is difficult to accept the plaintiff'

In other words, the plaintiff asserts that the ownership of the new building of this case was constructed with the cost and effort of the defendant, who is the contractor, the original acquisitor, so the right of retention, which is another real right, shall not be established with respect to the said new building. However, the evidence required by the plaintiff alone is insufficient to conclude that the new building of this case was originally acquired by the defendant due to the circumstance as alleged by the plaintiff, and there is no other sufficient evidence to acknowledge it. Rather, according to each of the above evidence, the new building of this case appears to have been acquired as the contractor's original acquisition of ownership, and therefore, the plaintiff's above assertion

In addition, the plaintiff asserts to the effect that the exercise of the right of retention against each land listed in [Attachment 1] to be removed shall not be permitted since there is no legal superficies for each land listed in [Attachment 1] to be removed, which is the site. However, since the new building of this case is awarded to the plaintiff with each land which is the site of this case, so long as the plaintiff acquired its ownership, the issue of legal superficies does not occur as long as the plaintiff acquired its ownership. Thus, the plaintiff's above assertion is not reasonable (if the defendant did not apply for a compulsory auction for the new building of this case, if the owner of the new building of this case and the land of the above land corresponding to the new building of this case were different, it is not possible to exercise the right of retention against the above new building of this case, and therefore the above new building of this case shall not be removed. Accordingly, the defendant is likely to exercise the right of retention for the above new building of this case, since the defendant's exercise of the right of retention against the above new building of this case was awarded to the plaintiff together with the above land of this case, it cannot be justified.

(4) Meanwhile, in a lawsuit claiming the delivery of a thing, where the defense of the right of retention is cited, the delivery of the thing shall be ordered in repayment and redemption of the claim arising in relation to the thing. Accordingly, the defendant is obligated to order the plaintiff to issue an order for the said new building in return for payment and redemption of the above amount of KRW 9,315,412,150, which is the secured claim of the above right of retention from the plaintiff.

B. Claim for damages

(1) The plaintiff asserts that the defendant is liable to compensate for all damages suffered by the plaintiff due to such unlawful possession, on the premise that there is no lien for the newly constructed building of this case or it is not permissible to exercise such lien for the defendant due to the same reasons as alleged earlier, since the defendant's possession of the said newly constructed building of this case constitutes a tort in relation to the plaintiff, who is the owner.

(2) However, as seen earlier, the Defendant’s possession of the instant new building based on this lien is lawful, and the Plaintiff’s above assertion is without merit without any further consideration (if there is no evidence to prove that the Defendant occupies the said new building based on this lien and uses or benefits from the said new building, it seems that there is no obligation to return unjust enrichment equivalent to the rent to the Defendant).

3. Conclusion

Therefore, the defendant is obligated to receive KRW 9,315,412,150 from the plaintiff to order the plaintiff to present new building of this case at the same time. Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

[Attachment]

Judges Kim Ho-ho (Presiding Judge)