A. Whether the contractor is obligated to pay the compensation for the completed portion if the contract for the construction work among the new construction works of a building is rescinded by the contractor’s notification of rescission, and if the restoration to the original state seriously incurs social and economic losses and the completed part is beneficial to the contractor (affirmative)

(b) The case holding that a claim for the construction work shall continue to exist, in case where the owner of the site who is a contractor sells the site at will to a third party during a progress of a construction work and the purchaser removes the completed portion

C. Whether the contractor's obligation to pay the contract price exists where the completed portion has been removed by a third party's act that is not attributable to both parties while the contractor refused to receive without any reason (affirmative)

(d) The scope of damages caused by the illegal removal, in case where the owner of a building illegally removed has no right to oppose the owner of the building, and thus was a name of voluntary removal or compulsory removal; and

E. Meaning of “time” under Article 209(1) of the Civil Act that provides for the possessor’s right to self-defense, and whether the possessor can exercise his/her right to self-defense if he/she had been unaware of the fact of deprivation even though he/she left his/her place of possession and has been deprived of considerable time after leaving his/her

(f) Whether a contractor has a lien on the completed portion of the contractor’s construction cost constructed with materials and efforts of the contractor until the payment of the construction cost (negative)

A. Where a contract for construction works in progress has been rescinded by the contractor's notification of cancellation, if considerable portions including the structural construction at the time of cancellation have already been completed, the restoration would cause serious social and economic losses and the completed portion would be the benefit to the contractor. Therefore, the contractor is obligated to pay the contractor the remuneration for the completed portion.

(b) The case holding that the contractor shall continue to have a claim for the construction cost, where the owner of the site who is a contractor sells the site at will to a third party during a construction progress and the purchaser removes the completed portion at will;

C. If the contractor notified the contractor that the completed portion should be paid to the contractor and the contractor should be delivered, the contractor may be deemed to have provided the contractor with his/her own obligation. If the completed portion was removed due to a third party’s act which was not attributable to both parties while the contractor refused to receive without any reason, the contractor’s obligation to pay the contract amount still remains.

(d) If the contractor, who was the owner of the completed portion, lost ownership of the completed portion in a third party’s tort, but there was no title against the owner of the site, and thus, was voluntarily removed or forced to be removed without compensation for damages, the damages arising from the unlawful removal cannot be deemed as the exchange price of the completed portion or the investment cost. The damages arising from the unlawful removal of the completed portion cannot be deemed as the exchange price of the completed portion or the investment cost, and the damages arising from the infringement of the benefits that can actually use the completed portion by illegally occupying the site until the completed portion is duly removed; and

마. 민법 제209조 제1항 에 규정된 점유자의 자력방위권은 점유의 침탈 또는방해의 위험이 있는 때에 인정되는 것인 한편, 제2항 에 규정된 점유자의 자력탈환권은 점유가 침탈되었을 때 시간적으로 좁게 제한된 범위 내에서 자력으로 점유를 회복할 수 있다는 것으로서, 위 규정에서 말하는 ＂직시”란 “객관적으로 가능한 한 신속히” 또는 “사회관념상 가해자를 배제하여 점유를 회복하는 데 필요하다고 인정되는 범위 안에서 되도록 속히”라는 뜻으로 해석할 것이므로 점유자가 침탈사실을 알고 모르고와는 관계없이 침탈을 당한 후 상당한 시간이 흘렀다면 자력탈환권을 행사할 수 없다.

F. In light of the fact that a lien is a real right, the contractor’s material and effort was constructed and the completed portion of an independent building constitutes the contractor’s ownership. Therefore, the contractor cannot have a lien until the payment of the construction cost is made.

A.B. Article 665(a) of the Civil Act. Article 673(b) of the Civil Act. Article 538(c) of the Civil Act. Articles 390 and 401(d) of the Civil Act. Article 763(e) of the Civil Act. Article 209(f) of the Civil Act. Article 320 of the Civil Act.

A. Supreme Court Decision 85Meu1751 Decided September 9, 1986 (Gong1986, 1377) (Gong1992, 1419), 91Da42630 Decided March 31, 1992 (Gong1992, 1419), 92Da30160 Decided December 22, 1992 (Gong1993, 567), 83Da725 Decided September 25, 197 (Gong1984, 266) (Gong1983, 1978), 80Da460 decided August 19, 198 (Gong1980, 13103, 1987).

Attorney Yoon Il-young et al., Counsel for the defendant-appellant-appellant

[Defendant-Appellant] Plaintiff 1 et al., Counsel for defendant-appellant-appellant

Seoul High Court Decision 89Na34294 delivered on March 27, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

As to each ground of appeal by Plaintiff’s agent

1. Summary of the reasoning of the judgment below

원심은, 원고는 1986.8.27. 피고 주식회사 청한건설(이하 피고 청한건설이라고 한다)로부터 같은 피고 소유인 그 판시 별지목록 기재 1 내지 13 대지와 소외인들 소유인 그 판시 별지목록 기재 14 내지 19 대지 위에 청한장미아파트 394세대와 부속상가 및 노인정 신축 공사를 공사대금 8,577,989,900원, 공사기간은 1986.9.5.부터 1987.11.5.까지로 정하여 수급하면서, 공사에 필요한 자재는 원고가 제공하고 공사대금 중 1차 기성고는 착공일로부터 3월 후에, 그 후의 기성고는 매 2월마다 지급받기로 약정한 사실, 원고는 1986.9.5.경 공사에 착수하여 그 해 12.중순경까지 이 사건 대지인 위 별지목록 기재 1 내지 12 대지 위에 제1동의 지층과 1층 및 2층, 제2동의 지층 및 중앙공급실, 제4동의 지층 및 1, 2, 3층의 각 골조공사와 견본주택건축공사를 마친 상태(이하 ‘이 사건 기성부분’이라고 한다)에서 위 피고에게 1차 기성고공사대금 등합계 금 1,475,316,191원의 지급을 청구한 사실, 그러나 같은 피고는, 원고가 정화조 및 중앙공급실 등을 당초의 설계와 다르게 시공하였고 콘크리트의 강도를 규정보다 약하게 시공하는 등 부실공사를 하였다는 등의 이유를 들어 그 지급을 거절한 데다가, 원고로부터 차용한 금 600,000,000원도 변제하지 아니하고 그 담보를 위하여 교부한 위 피고의 계열회사인 소외 주식회사 청한주택 명의의 액면 금 100,000,000원권 약속어음 2장도 지급거절된 사실, 그러자 원고는 위 대여금 및 1차 기성공사대금을 지급하고 장래 발생할 공사대금의 지급방법을 확실히 하기 전에는 공사를 계속할 수 없다면서 공사를 중단한 채 방치하다가 1987.2.27.경 위 피고에게 이 사건 공사도급계약을 해제한다고 통보하고 장비와 인원을 철수시킨 채 경비원 한 사람으로 하여금 이 사건 기성부분을 점유·관리하게 하여 온 사실, 한편 소외 주식회사 조흥은행은 이 사건 대지에 관하여 1984.9.21.자 근저당권을 가지고 있었는데, 그 피담보채무를 변제받지 못하였기에 임의경매를 신청하였고, 그 절차에서 피고 주식회사 청한종합쇼핑센타(이하 피고 청한쇼핑이라고 한다)가 1988.4.20. 이를 금 40억원에 경락받아 같은 해 6.2. 그 소유권이전등기를 마치고, 같은 날 이를 피고 3, 피고 4, 피고 5, 피고 6(이하 피고 5 등이라고 한다)에게 금 43억원에 매도하여 위 피고들 앞으로 소유권이전청구권보전을 위한 가등기를 경료하였다가 같은 해 6.21. 위 가등기에 기한 소유권이전의 본등기를 경료한 사실, 한편 피고 5 등은 이 사건 대지에 예식장을 건축할 계획을 세우고 이 사건 기성부분을 철거하고자 같은 해 6.1.경 피고 청한건설 및 피고 청한쇼핑을 상대로 제소전화해신청을 하였고, 그달 20. “피고 청한건설은 피고 5 등의 비용으로 이 사건 기성부분을 철거하고, 피고 청한쇼핑은 이 사건 대지를 인도한다.”는 취지의 제소전화해가 성립한 사실, 그 후 원고가 피고피고 5 등이 이 사건 기성부분을 철거하려는 사실을 알게 되어 그달 24. 피고 5에게 이 사건 기성부분은 피고 청한건설의 소유가 아니라 원고의 소유이므로 기성공사대금을 지급받기 전에는 철거에 응할 수 없다고 통보하였지만, 피고 5는 위 제소전화해가 성립되었다는 이유로 집달관을 통하지도 아니한 채 같은 해 7.7.부터 중장비와 인부들을 동원하여 이 사건 기성부분을 무단히 철거하기 시작한 사실, 원고가 인부들을 동원하여 이에 대항하자, 피고 5는 위 제소전화해에 대한 대체집행신청을 하여 그달 14. 대체집행결정을 받았고, 그달 16.에는 집달관을 통하여 이 사건 기성부분의 철거집행을 하려 하였으나 원고가 이 사건 기성부분에 대한 소유권을 주장하면서 인부들을 동원하여 제지함으로써 그 집행을 하지 못한 사실, 그러자 피고 5는 다시 중장비와 인부들을 동원하여 무단철거를 강행하였고 그달 22.경 이 사건 기성부분을 완전히 철거하였으며 그 철거에 따른 폐자재를 임의로 처분하여 버린 사실을 인정한 다음, 위 인정사실에 의하면, 이 사건 기성부분은 수급인인 원고가 그 비용과 재료를 제공하여 시공한 것으로서 아직 도급인인 피고 청한건설에게 인도되지 아니하였으니 원고의 소유이고, 피고 5로서는 피고 청한건설과 위 제소전화해를 하였다 하더라도 이 사건 기성부분의 소유권이나 처분권을 취득할 수는 없으므로, 비록 이 사건 대지의 소유자로서 그 방해배제청구권에 기하여 원고를 상대로 이 사건 기성부분의 철거를 구할 수 있기는 하지만, 그 철거집행은 집행력있는 채무명의 등에 기하여 정당한 절차에 따라 하여야 할 것인데도, 원고로부터 미리 이 사건 기성부분은 원고의 소유이므로 철거에 응할 수 없다는 통보를 받고서도 위 제소전화해가 있었다는 이유로 이 사건 기성부분을 사력으로 무단철거한 이상, 피고 5는 불법행위자로서 이 사건 기성부분의 불법철거 및 그 과정에서 원고가 입은 손해를 배상할 책임이 있다고 판단하였다.

Then, the court below rejected the plaintiff's 1's allegation that the above 5th portion of the construction cost was 0,00 won and the 5th portion of the construction cost was 1,304,6280 won as the market price of the above 5th portion of the construction cost. The plaintiff's 5th portion of the construction cost was 00,000 won and the 5th portion of the construction cost was 10,000 won as the 5th portion of the construction cost. The plaintiff's 5th portion of the construction cost was 0,000 won as the 5th portion of the construction cost, and the 5th portion of the construction cost was 10,000 won as the 5th portion of the construction cost. The plaintiff's 1st portion of the construction cost was 1,000 won as the 5th portion of the construction cost, and the 5th portion of the construction cost was 1,000 won as the 5th portion of the construction cost.

2. As to the ground of appeal No. 1 by the Plaintiff’s agent

The issue is that the plaintiff has a claim for the construction cost as to the completed portion of the construction in this case against Defendant 1, and the third party, as the defendant 5 illegally removed it and thereby inflicted damages on the loss of the above claim in accordance with the debtor's risk burden principle, and the above defendant's act constitutes the infringement of the third party's claim.

According to the facts acknowledged by the court below, it is reasonable to view that the contract for new construction of the building of this case was rescinded by the plaintiff's notification of cancellation (as seen below, it seems that the construction contract of this case did not have the ability to pay the construction price of this case to the plaintiff). At the time of the plaintiff's rescission of the construction contract of this case, the construction contract of this case was completed with the 1st floor and the 2nd floor, the 2nd floor, the 4nd floor and the central supply office, the 1st floor, the 4nd floor and the 2nd floor, and the 3rd floor, and the construction of the model house was completed. Thus, it is interpreted that the restoration was significant social and economic loss and the completed part is beneficial to the construction executed by the defendant, so it is interpreted that the construction contract of this case was obligated to pay the plaintiff the remuneration for the completed part of this case (see Supreme Court Decision 85Da1751 delivered on September 9, 1986).

However, whether the removal of this case constitutes the infringement of a third party's claim, the Plaintiff's obligation to deliver the completed portion of this case to the Defendant's construction was extinguished by the Plaintiff's risk burden according to the obligor's risk burden principle, and therefore, the Defendant's obligation to deliver the completed portion of this case to the same Plaintiff can be considered first, since it is recognized that the construction cost obligation of this case against

According to Gap evidence Nos. 19-13, 18, and 49 adopted by the court below, since a person who actually sells the land of this case owned by defendant Cheong-do Construction to defendant 5 et al., the defendant agreed to remove the completed portion of this case at the time of concluding the above sales contract, and accordingly, the defendant agreed to remove the completed portion of this case. Thus, even though the defendant 5 did not perform the act of removing the completed portion of this case as the execution of the protocol of telephone settlement, the removal of the completed portion of this case was based on the above contract and the telephone of this case. Thus, even if the defendant 5 did not participate in the act of removing the completed portion of this case, it is reasonable to conclude that the plaintiff's act of removing the completed portion of this case was done by the defendant 19-13, 18, and 49, even if there was no intention or negligence in the act of removing this case, it cannot be deemed that the plaintiff's representative director cannot perform the duty of delivering the completed portion of this case under the good faith principle.

In addition, according to Gap evidence No. 9-3, which was not rejected by the court below, it can be known that the plaintiff notified that he would pay the construction cost to the defendant Cheongdo Construction and deliver the completed portion of this case on June 22, 198. Thus, the plaintiff may be deemed to have provided its own obligation. Nevertheless, the defendant's refusal to receive it without any justifiable reason, thereby being found to be in the place of receipt (see Supreme Court Decision 83Meu1476, Nov. 8, 1983). Thus, since the plaintiff's obligation cannot be performed due to the illegal removal by defendant 5, which is not attributable to both parties during the place of receipt, the plaintiff's obligation to pay the construction cost to the plaintiff Cheongdo Construction is still in existence.

As such, the Plaintiff’s obligation to deliver the completed portion of the instant case may not be fulfilled on the grounds that the Plaintiff was responsible for the construction of Defendant 1, a creditor (the former part of Article 538(1) of the Civil Act) or for the grounds that both parties are not responsible (the latter part of Article 538(1) of the Civil Act). Therefore, we cannot accept the argument that the instant obligation to pay the construction cost against the Plaintiff of Defendant 1 and that the said obligation should be deemed as infringement on the said claim.

2. As to the ground of appeal No. 2 by an attorney Yoon Il-young

Although the Plaintiff lost ownership of the completed portion of this case due to Defendant 5’s tort, the lower court determined that the Plaintiff was the owner of the completed portion of this case, and as such, the Plaintiff did not have the right to set up against Defendant 5, etc., the owner of the site of this case, even if the Plaintiff was the owner of the completed portion of this case, and thus, was ordered to voluntarily remove or be forced to remove it without compensation for damages. Therefore, damages arising from the unlawful removal cannot be deemed as exchange price or investment cost of the completed portion of this case. However, until the completed portion of this case was duly removed, the damages are limited to the profits actually usable the completed portion of this case by illegally occupying the site of this case until the completed portion of this case was properly removed, and the damages are limited to the damages arising from the infringement of the interest to recover the completed portion of this case after the removal. Therefore

3. As to the third ground for appeal by an attorney Yoon Il-young

The right to self-defense of the possessor under Article 209(1) of the Civil Act is recognized when there is a danger of deprivation or interference of possession. Meanwhile, the right to self-determination of the possessor under Article 209(2) of the Civil Act can be restored to his own possession within a limited and narrow range at the time of his/her deprivation of possession. The term “time” under the above provision is interpreted as “as soon as objectively possible” or “as soon as possible to the extent deemed necessary to recover possession by excluding the perpetrator under the social concept” (see Supreme Court Decision 86Meu1683, Jun. 9, 1987). Thus, if the possessor was deprived of his/her deprivation without knowing the fact of his/her deprivation, and a considerable time has elapsed after his/her deprivation of possession, he/she cannot exercise his/her right to self-defense unless he/she had sufficient force.

6. On the other hand, the plaintiff was unable to carry out the above 1-2, Gap evidence 12, Eul evidence 15-2, Eul evidence 19-8, 12, 17, 19-2, and 49, respectively, and the testimony of non-party 1 and non-party 2 who were not rejected by the court below, and the non-party 1 and the non-party 2 were removed from the court of first instance on the 1-6th of 5th of 5th of 19, Gap evidence 20, Eul evidence 19-20, and Eul evidence 18 through 24, and the non-party 3's testimony of the non-party 1 who was non-party 4, the non-party 1 and the non-party 5's non-party 1 were to be removed from the court of first instance on the 5th of 1987.

Therefore, the court below's rejection of this part of the plaintiff's assertion is correct, and there is no error of law by misunderstanding the legal principles as to proximate causal relation in the order of reason, self-help and calculation of damages, like the theory of lawsuit. All arguments are without merit.

4. As to the ground of appeal No. 4 by Attorney Yoon Il-young

Since the court below's rejection of the claim against the above Defendants, it is not erroneous in the misapprehension of legal principles as to the establishment of joint tort, such as the theory of lawsuit, since the defendants, other than the defendant 5, tried to remove the completed portion of this case, and it cannot be deemed as an aiding and abetting or aiding and abetting illegal removal. It is also without merit.

5. As to the ground of appeal No. 1 by the Plaintiff’s agent

As determined by the court below, since the completed portion of this case is constructed with materials and efforts of the plaintiff and constitutes an independent building, it is owned by the plaintiff. Accordingly, the plaintiff's assertion that the plaintiff has a lien on this issue is without merit in light of the fact that the lien is a real right.

In addition, the court below's decision that although the plaintiff's possession was deprived, it cannot be viewed that the plaintiff suffered a certain loss.

As seen above, Defendant 5’s assertion that the Plaintiff suffered damages from infringement of the Plaintiff’s ownership and claim against the Plaintiff due to the removal of the completed portion of this case. Therefore, all arguments are without merit.

6. As to the ground of appeal No. 2 by an attorney Park Jong-chul

The issue is that, in light of the good faith principle, the Plaintiff not only has a lien on the completed portion of the instant site, but also the Defendants, the subsequent purchaser of the instant site, cannot exercise the right to claim the exclusion of disturbance based on their ownership until the Plaintiff is paid the construction cost of the instant case, but it is merely an independent opinion and cannot be accepted.

7. Accordingly, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing plaintiff. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice)