In case where the debtor acquired the right of retention by transferring possession to the creditor of the construction price for the immovables after a registration of entry in the decision to commence compulsory auction has been made on the immovables owned by the debtor, whether the possessor may oppose the successful bidder in the auction procedure on the ground of the right of retention (negative)

Where a debtor has acquired a right of retention by transferring his/her possession to the creditor of construction cost regarding the said immovables after a registration of compulsory commencement of auction was made on the immovables owned by the debtor, and the seizure took effect, such possession constitutes an act of disposal likely to reduce exchange values of the subject matter, and thus contravenes the prohibition of disposition of seizure under Articles 92 (1) and 83 (4) of the Civil Execution Act, and thus, the possessor cannot oppose the buyer in the auction procedure on the ground of the above right of retention.

Articles 83(4), 91(5), and 92(1) of the Civil Execution Act

Plaintiff (Law Firm Jeongsung, Attorneys Kang Jong-jin et al., Counsel for the plaintiff-appellant)

Defendant (Appointed Party)

Seoul High Court Decision 2004Na58453 delivered on March 30, 2005

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Appointed Party).

1. We examine the grounds of appeal by the Defendant (Appointed Party).

In a case where the debtor acquired a lien by transferring his possession to the creditor of the construction price for the said immovables after a compulsory decision on commencement of auction has been entered in a building, etc. owned by the debtor and the seizure has taken effect, such possession constitutes an act of disposal likely to reduce exchange value of the subject matter, and thus, the transfer of such possession goes against the prohibition of disposition of seizure under Articles 92 (1) and 83 (4) of the Civil Execution Act, and thus, it cannot be set up against the buyer of the auction procedure on the ground of the above lien.

Comprehensively taking account of the adopted evidence, the court below acknowledged that the remaining designated parties except for 1) started indirect possession of the above designated parties from April 30, 203 through the above designated parties' right to request the return of possession of the manufacturing site of this case from around 2003 to the date of completion of the auction procedure on May 6, 2002, upon the non-party 1's compulsory decision of commencement of construction due to construction of the factory building of this case owned by Pyeongtaek Machinery Industry, which was the creditor of Pyeongtaek Industrial Complex. After the compulsory commencement of construction of the factory building of this case on May 13, 2002, the above designated parties had registered the entry of the compulsory commencement decision of commencement of auction, and that there were no errors in the misapprehension of legal principles as to the prohibition of possession of the factory building of this case from around May 23, 2003 to the date of completion of the auction procedure, and there were no errors in the misapprehension of legal principles as to the above designated parties' right of retention and removal of the building site of this case.

Article 91(5) of the Civil Execution Act, which states one of the grounds for opposing power under the above lien by Defendant (Appointed Party) adopts the principle of takeover that the buyer takes over the burden in the case of the above lien, but the lien taken by the buyer here is, in principle, a lien taken by the buyer can be viewed as a claim against the execution creditor of the auction procedure. In this case, as in the case of this case, it is in a situation where the lien was not acquired because it was not occupied at the time of seizure of the auction real estate, and in the case where the lien was acquired by acquiring the lien by being transferred from the debtor immediately after the seizure for the purpose of securing the existing claim concerning the auction real estate after the seizure, in light of the above legal principles, it cannot be viewed as a counter-

On the other hand, the possession under the Civil Act is a requirement for the establishment of the right of retention and is a requirement for the existence of the right of retention, and it does not mean that the right of retention is established without possession on the ground that the establishment of the right of retention does not require any relationship between the claim and the possession. Thus, the argument in the grounds of appeal purporting that as long as the above claim for construction cost reaches the due date, it shall be deemed that

2. The Claimant 1 did not submit the appellate brief within the lawful period of submission even after receiving the notification of the receipt of the trial record, and the petition of appeal filed by the said Claimant does not contain any indication in the grounds of appeal (the party’s appointment was filed after the filing period of the appellate brief).

3. Conclusion

Therefore, the appeal is dismissed, and the 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 Park Jae- Jae (Presiding Justice)