Plaintiff

Defendant (Law Firm Republic of Korea, Attorneys Kim Ho-nam, Counsel for defendant-appellant)

January 18, 2011

1. The defendant shall receive from the plaintiff 136,430,218 won with interest of 136,384,293 won with interest of 20% per annum from February 2, 2009 to the date of complete payment, and deliver to the plaintiff real estate listed in the attached list with interest of 136,384,293 won.

2. The plaintiff's primary claim and the remainder are dismissed, respectively.

3. 1/10 of the costs of lawsuit shall be borne by the Defendant, and the remainder by the Plaintiff, respectively.

4. Paragraph 1 can be provisionally executed.

In the first place, the defendant shall deliver to the plaintiff the real estate listed in the separate sheet, and the defendant shall deliver the above real estate to the plaintiff at the same time, after deducting the amount equivalent to the rent from the plaintiff to May 6, 2010 each month from October 7, 2004 to May 6, 2010 from the amount equivalent to the rent of KRW 775,00.

1. Basic facts

The following facts are not disputed between the parties, or are recognized by Gap evidence 1, Gap evidence 2, Eul evidence 3, Gap evidence 4, Gap evidence 5, Eul evidence 1, Eul evidence 2-1 through 4, Eul evidence 5-1 through 54, and the whole purport of arguments.

A. On July 5, 2004 with respect to the real estate listed in the separate sheet (hereinafter “the instant real estate”), the registration of preservation of ownership was completed in the name of the non-party corporation Epia D (hereinafter “Epia D”), and thereafter on February 15, 2005, the compulsory auction was commenced on February 17, 2005, and the registration of commencement of auction was completed on February 17, 2005. On March 8, 2005, the voluntary auction was commenced, and the above two auction cases were joined, and on May 6, 2010, the Plaintiff paid the successful bid price and completed the registration of ownership transfer on May 6, 2010.

B. The defendant supplied building materials, such as cement and sand, to the above construction site from April 1, 2003 to July 2004 in accordance with an agreement with Hanul Co., Ltd. (hereinafter "Sulul"), who was awarded a contract for the construction of the construction of the Hangitius Building from Eul-do (hereinafter "Sul"), and the balance amount reaches 136,384,293 won as the principal contractor did not pay the subcontract price at least twice. The defendant filed a lawsuit against Eululd, the ordering person, claiming payment of the purchase price, with Busan District Court Decision 2005Gahap20708, and on September 20, 2007, the defendant received the payment of the purchase price at the rate of 136,384,293 won and the above annual payment from November 26, 2005 to September 207, 2005.

C. Meanwhile, the defendant had resided in the real estate of this case from the end of 2004 among the newly constructed buildings with the consent of the non-party 1, who is the representative director and the non-party 1, who is in fact the representative director of Echiiopia, and the defendant filed a lien report on each of the above newly constructed buildings including the real estate of this case with other construction business operators around March 10, 2005.

D. On September 17, 2008, the Defendant filed a lawsuit seeking confirmation of non-existence of a lien on each reported real estate by the Busan District Court Decision 2006Gahap20453, which was transferred by the non-party Korea-Japan Mutual Savings Bank to the non-party Korea-Japan Mutual Savings Bank on the loan claim against Epia (hereinafter “CB”) and filed a lawsuit seeking confirmation of non-existence of a lien on each reported real estate against the non-existence of a lien. The above judgment became final and conclusive at that time.

2. The assertion and judgment

A. The plaintiff's assertion

The plaintiff asserts that ① the commencement of possession by the defendant is illegal, and that there is no relation between the defendant's claim for construction cost and the possession of the real estate in this case, and ② even if the possession was legally transferred from Ethiopia, it would be a fraudulent act in relation to the creditor, provisional seizure and provisional disposition, it would be contrary to the prohibition of disposal, and since possession was acquired after the establishment of senior collateral security, it cannot be asserted against the plaintiff. If the defendant seeks to transfer the real estate in this case primarily against the defendant, and the defendant's lien is acknowledged in preliminary case, it shall be sought to transfer the real estate in this case from October 7, 2004 to May 6, 2010, which is the date of acquisition of the plaintiff's ownership, with the repayment of the remaining secured claim less unjust enrichment equivalent to the rent due to the possession and use of the real estate in this case from the date of acquisition of ownership.

B. Determination

(1) As to the main claim

(A) A person who possesses an article of another person has the right to retain that article until the claim arising from the article is repaid (Article 320(1) of the Civil Act). Since the possession of an article does not require checks separately between a claim and the possession of an object, even if the article was possessed after the claim on the article occurred (see Supreme Court Decision 64Da1977 delivered on March 30, 1965, etc.), and in cases where the possession of the article is a tort, the right of retention is not established, but the burden of proof is against the person who claims the return of the object (see Supreme Court Decision 66Da600, 601 delivered on June 7, 196, etc.).

As to the instant case, the Defendant supplied cement and sand at the site of the construction for the construction for the new construction of the Korea-Mitius building in Hang-gu, under an agreement with the U.S., and the remaining construction cost has reached KRW 136,384,293, and the Defendant recognized the aforementioned facts as above. The Defendant resided in the instant real estate from the end of 2004 to the end of the closing date of the argument in the instant case. According to the above facts, the Defendant’s claim for the construction cost was generated by the supply of the materials necessary for the said new construction, and the supplied materials correspond to the composition of the instant real estate. Thus, the Defendant is recognized as having a lien to secure the right to claim for the construction cost of the instant real estate. On the other hand, the relationship between the claim and the object of the instant construction does not require the establishment of a lien, but there is no evidence to prove that the Defendant’s possession was due to a tort or a waiver of a lien in advance.

(B) Where the debtor acquired a lien by transferring the construction cost of the said real estate to the creditor of the construction cost after the attachment took effect after the entry of the decision to commence the auction on the real estate, such as a building owned by the debtor has been registered and the seizure takes effect, the possessor is contrary to the prohibition of the disposition of seizure under Articles 92(1) and 83(4) of the Civil Execution Act, and thus cannot oppose the buyer of the auction procedure on the ground of the above lien, but this legal principle does not apply to the case where the right of retention has been acquired before the seizure takes effect due to an auction, but it does not change because the time of acquisition of the right of retention is after the establishment of the right of retention or after the commencement of the auction procedure on the basis of the right of retention established before the acquisition of the right (Supreme Court Decision 2008Da70763 Decided January 15,

As seen earlier, as the Defendant had already acquired a lien prior to the completion of the entry registration of the order to commence the auction on the instant real estate, there is no problem against the effect of prohibition of disposition of seizure. The Plaintiff is not only a creditor of Ediopia at the time of the commencement of possession of the Defendant, and there is no evidence to regard the Plaintiff as constituting a fraudulent act, and there is no relationship between the establishment of a lien and the effect of prohibition of disposition of provisional seizure, and there is no other relation between the establishment of a lien and the effect of prohibition of disposition of provisional seizure. Therefore, the Plaintiff’s assertion

(2) As to the conjunctive claim

In the auction procedure of real estate, the buyer is liable to repay the claim secured by the lien to the lien holder in accordance with Article 91(5) of the Civil Execution Act, and the plaintiff's conjunctive claim is deemed to seek the delivery of the real estate in this case in repayment of the secured debt of the lien. The plaintiff cannot claim the return of unjust enrichment directly against the defendant regarding the previous period after acquiring the ownership of the real estate of this case on May 6, 2004. However, the plaintiff is not entitled to claim the return of unjust enrichment directly against the defendant on behalf of the former owner and the judgment obligor, but it seems to claim the partial extinction of the secured debt or appropriation of the secured debt on behalf of the former owner and the judgment obligor. Accordingly, the defendant asserts that the amount equivalent to the rent for the period from the end of 2004 to May 5, 2005 is merely appropriated for the part of the defendant's claim for delay payment

Even if the debtor or owner's consent is obtained, the defendant has a duty to substantially use and profit from the preservation beyond the scope of the preservation act. As seen above, the defendant has been living together with his family members from the end of 204 to the end of 208, and used them as real scambling and profit-making (the defendant's wife as of October 7, 200) and it is insufficient to recognize that the defendant used the above real estate from the point of 204 to 36.36% per annum from the end of 204 to the end of 208.36% per annum, 36% per annum from the end of 204 to the end of 209 x 36% per annum, 46% per annum from the end of 204 to the end of 209 x 36% per annum, 46% per annum from the end of 209 to the end of 2004 to the day of 194.75% per annum

C. Sub-committee

Therefore, the defendant is obligated to deliver the real estate of this case to the plaintiff at the same time with repayment damages calculated by the rate of 20% per annum from February 2, 2009 to the date of full payment with respect to KRW 136,430,218 and the principal amount of KRW 136,384,293 among them.

3. Conclusion

Therefore, the plaintiff's primary claim is dismissed as it is without merit, and the preliminary claim is justified within the scope of the above recognition and it is so decided as per Disposition.

[Attachment]

Enforcement Decree of the Judge’s Interest