[Defendant-Appellee-Appellant] Cheongmamari Co., Ltd. (Law Firm Cheongju, Attorney Cho Jong-won, Counsel for defendant-appellant-appellee-appellant)

Defendant (Attorney Jeong-soo, Counsel for the defendant-appellant)

July 18, 2018

Cheongju District Court Decision 2017Kadan21011 Decided January 10, 2018

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

On March 10, 2017, the registration office of the Incheon District Court against the U.S. corporation, the Defendant, upon the registration office of the Incheon District Court on March 10, 2017, did not grant a voluntary auction on April 4, 2017 with respect to the vessels listed in the separate sheet.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Basic facts

The court's explanation on this part is the same as the reasoning of the judgment of the court of first instance. Thus, this part is cited in accordance with the main text of Article 420 of the Civil Procedure Act.

2. Summary of the parties’ assertion

A. The plaintiff's assertion

1) From March 17, 2010, the instant vessel became a barge fixed and installed on the water to be used for mooring the vessel and became a vessel ineligible for registration pursuant to the main text of Article 8 and Article 26 subparag. 4 of the Ship Act. Meanwhile, if the instant vessel intends to fall under the proviso of Article 26 subparag. 4 of the Ship Act, it is required to be used as multiple gathering facilities, such as a floating hotel, a water restaurant, and a water theater, and thus, it cannot be deemed that the aforementioned provision is applicable merely because the instant vessel has permission to occupy and use the vessel. Accordingly, the instant vessel was transferred to Nonparty 3 and the Plaintiff in succession due to compulsory execution and sale of movable property, and the Plaintiff legitimately acquired the ownership of the instant vessel. Accordingly, the instant vessel is not the owner of the instant vessel, and it is also null and void since the instant voluntary auction was initiated with respect to the instant vessel, which is the Plaintiff’s ownership, based on the right to collateral security.

2) In addition, on July 3, 2013, U.S. on the part of the Plaintiff on July 3, 2013, a license for water-related leisure business and water-related leisure business within the ○○ho Lake business territory, and a license for water-related business and a license for the instant vessel was transferred to the Plaintiff by transferring the Plaintiff the ownership of the instant vessel to the Plaintiff, with knowledge that the ownership of the instant vessel remains, and the ownership transfer registration for the instant vessel remains. This is null and void pursuant to Article 108 of the Civil Act

B. Defendant’s assertion

1) Even if the instant vessel is temporarily fixed, the instant vessel may be used for navigation on water as it is possible to move from the beginning to make it impossible to move on the premise that it is to be used for mooring and storing vessels, and its purpose is not abolished. Thus, the vessel’s techniques should be applied.

2) Furthermore, even if the instant vessel does not fall under the requirements for a vessel that can be registered solely on the aforementioned grounds, the instant vessel constitutes a vessel that needs to be registered as an floating structure-type barge that obtained permission to occupy and use under Article 33 of the River Act pursuant to the proviso of Article 26 subparag. 4 of the Ship Act.

3) Therefore, since Nonparty 3’s purchase of the instant vessel according to the procedure for compulsory execution of movable property is null and void as it is in accordance with the procedure for compulsory execution of movable property, and the Plaintiff who purchased the instant vessel from Nonparty 3 did not legally acquire the ownership. Since the registration of establishment of a neighboring mortgage established by the Defendant as the owner of the instant vessel is valid, the procedure for commencement of voluntary auction of the instant vessel based on the Defendant’s legitimate right to collateral security is lawful.

3. Determination

A. Determination as to whether the instant vessel is subject to registration

1) Issues of the instant case

The Plaintiff asserts that the purchase of the instant vessel by Nonparty 3 according to the procedure for compulsory execution of movable property by Nonparty 3 is lawful, and that the Plaintiff acquired ownership from Nonparty 3. As such, the Defendant’s acquisition of ownership is null and void since the Defendant was subject to the registration of establishment of the instant neighboring ship by Dass, who is not the owner of the instant vessel. However, it cannot be deemed that the main sentence of Article 26 subparag. 4 of the Ship Act is applicable since the instant vessel constitutes a barge with a gross tonnage of at least 100 tons and is not manufactured for mooring from the beginning. Furthermore, even if the instant vessel was a floating structure barge to which the proviso to Article 26 subparag. 4 of the Ship Act applies and obtained permission to occupy and use the vessel, it is invalid to purchase the instant vessel by Nonparty 3 according to the procedure for compulsory execution of movable property, and it is valid since the instant registration of establishment was completed by Das, who is the owner of the instant vessel.

Therefore, if the ship of this case falls under ① a barge installed by fixing it on the water to be used for mooring, storing, etc. among a barge with a gross tonnage of not less than 20 tons, the ship of this case constitutes “a barge installed by fixing it on the water to be used for mooring, storing, etc.” under the main sentence of Article 26 subparag. 4 of the Ship Act, and ② the ship again falls under the main sentence of Article 26 subparag. 4 of the Ship Act, it is examined as to whether it falls under “a floating structure type barge”.

2) Relevant laws and legal principles

A) (1) The term “ship” means a type of ship that can be used for navigation on or under the water. A vessel has a whistle, a sailing vessel, a barge, and a vessel propelled by an engine, a sailing vessel is a vessel propelled by sail and a barge propelled by another vessel due to lack of self-traffic capacity (Article 1-2(1) of the Ship Act).

(2) The registration of a ship shall be otherwise prescribed by another Act (Article 8(4) of the Ship Act). The ship techniques shall apply to a flag ship with a gross tonnage of at least 20 tons, sailing ship, and barge with a gross tonnage of at least 100 tons, but shall not apply to a barge fixed on the water to be used for mooring, storing, etc. among a barge with a gross tonnage of at least 20 tons (Article 2 of ship techniques and main sentence of Article 26 subparag. 4 of the Ship Act): Provided, That this shall not apply to a floating structure-type barge, such as a floating hotel, floating restaurant, or water performance restaurant, with a permit to occupy or use under Article 8 of the Public Waters Management and Reclamation Act or with a permit to occupy or use under Article 33 of the River Act (proviso to Article 26 subparag. 4 of the Ship

(3) The registration of a ship shall be made with respect to the establishment of ownership, mortgage, right of lease, preservation, transfer, change, restriction on disposal, or extinction (Article 3 of the Ship Registry). In the case of a ship eligible for registration, the transfer of ownership shall take effect only by agreement between the parties concerned: Provided, That if such ship is destroyed, sunken, or dismantled, or a ship is not indicated in the certificate of ship's nationality (Article 743 of the Commercial Act). When a ship loses its nationality or its existence is unclear for 90 days (not less than 6 months in the case of a fishing ship) if it becomes a ship to which Article 2 of the Ship Registry is not applicable, a registered titleholder shall apply for the cancellation of registration (Article 6 of the Ship Registry, Article 21(1) of the Ship Registration Rule). If a ship is destroyed, sunken, or dismantled, a ship becomes disqualified under the subparagraphs of Article 26 of the Ship Act, and if it is unclear that a ship exists within 90 days, a shipowner shall file an application for cancellation registration with the administrator of the competent regional maritime affairs and port office within 20 days.

(4) The compulsory execution against a vessel that can be registered shall be governed by the provisions concerning the compulsory auction of immovables (Article 172 of the Civil Execution Act).

B) (1) Article 2 of the Ship Act and Article 743 of the Commercial Act and Article 172 of the Civil Execution Act apply to a barge (hereinafter “ship mooring barge, etc.”) among a barge with a gross tonnage of not less than 20 tons, which is fixed on the water to be used for mooring, storing, etc. of a ship (hereinafter “ship mooring barge, etc.”). As such, Article 188(1) of the Civil Act on the effect of changes in the real rights of a ship mooring, etc. is applied to the change in the rights pertaining to the above ship mooring, etc., and thus, the compulsory execution against the above ship mooring barge, etc., which is a movable, shall be deemed to be in accordance with the provisions concerning movable property.

(2) On the other hand, Article 2 of the Ship Act, Article 743 of the Commercial Act, and Article 172 of the Civil Execution Act shall apply to floating structure-type barge such as floating hotels, floating restaurants, and floating performance halls, which are permitted to occupy or use under Article 8 of the Public Waters Management and Reclamation Act, or which are permitted to occupy and use under Article 33 of the River Act (hereinafter “ floating structure-type barge”), and Article 172 of the Ship Act shall apply to the above floating structure-type barge. Thus, the change in the right to floating structure-type barge shall be registered in order to oppose a third party only by agreement between the parties concerned, and it shall be recorded in the certificate of ship’s nationality (see Article 743 of the Commercial Act), and compulsory execution shall be in accordance with the provisions on compulsory auction of real estate (see Article 172 of the Civil Execution Act).

3) In the instant case:

A) Whether the instant vessel constitutes a vessel for mooring vessel, etc.

The purpose of the above-mentioned statutes is that only a certain scope of a ship can be registered among movable property or a ship that can be used for navigation on the water as seen earlier, and pursuant to the procedure for compulsory sale by real estate. Although a barge capable of navigation falls under a ship, from that time when the owner of a barge installs a barge fixed on the water to continue to use it for mooring a ship, the barge shall not be registered, and shall be subject to cancellation registration pursuant to Article 21(1) of the Rules on Registration of Ships, and changes in its rights shall not be subject to registration, and shall be subject to compulsory execution against movable property. It shall be interpreted that compulsory execution against a ship may also be done by means of compulsory execution against movable property. Thus, it shall not be deemed that the ship from the point of view of the defendant's assertion that the ship is made impossible to move on the premise that it is used for mooring and storing a ship, and even if a barge was manufactured on the premise that it is possible to move from the point of time of loading to the water of this case, it shall not be deemed that the ship falls under Article 26(4) of this case.

B) Whether the instant vessel constitutes floating structure-type barge

(1)The proviso of Article 26 subparagraph 4 of the Ship Act provides that "Provided, That it is not possible to permit the occupation or use of a floating hotel pursuant to Article 8 of the Public Waters Management and Reclamation Act or floating structure-type barge such as floating hotel, floating restaurant, and floating theater pursuant to Article 33 of the River Act," the proviso of Article 26 subparagraph 4 of the Ship Act is newly established as of December 29, 209. Under the proviso of Article 26 subparagraph 4 of the Ship Act, it is not possible to apply the above provision to floating structure-type floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floatings which are more than 3 floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floatings which are more than 2 floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floatings which are more than 2 floating floating floating floating floating floating floating floating floating floating floating floating floating floating floating floatings which are installed.

Meanwhile, according to the purport of Gap's evidence Nos. 8, 14, Eul's evidence Nos. 5, 6, and 8 as well as the overall purport of video and pleadings, the United States of America obtained permission to occupy and use rivers pursuant to Article 33 (1) of the River Act from the Incheon City on May 16, 2010, and operated the water leisure operation of the ship of this case, and the plaintiff also appears to have operated the same business by taking over all of the above water leisure operation and permission rights from the United States of America on July 13, 2013. The plaintiff can be recognized that the ship of this case constructed a large structure such as a 10cc thick concrete with the thickness of 10cm and used for the business, so the ship of this case constitutes a floating structure under Article 24 (4) proviso of the Ship Act.

(2) In order to be subject to the proviso of Article 24 subparagraph 4 of the Ship Act, the Plaintiff asserted that only permission for occupation and use of rivers can be applied to a group facility, such as a floating hotel, water restaurant, and water performance hall. However, as seen earlier, it is reasonable to view that the above provision can not be applied to a group facility. Furthermore, even if the above provision can be applied to a group facility as alleged by the Plaintiff, even if the above provision can be applied to a group facility, the Plaintiff or U.S.S. is used as a place for relaxation or eating, and thus the above provision does not constitute a group facility. In full view of the above, the Plaintiff’s above assertion is difficult to accept.

C) Sub-decision

Therefore, since Nonparty 3’s purchase of the instant vessel in accordance with the procedure for compulsory auction by way of movable property is null and void as it is in violation of Article 172 of the Civil Execution Act, and the Plaintiff who purchased the instant vessel from Nonparty 3 did not legally acquire the ownership. Since the establishment registration of the instant neighboring mortgage established by Daman to the Defendant as the owner of the instant vessel is valid, the procedure for the commencement of voluntary auction of the instant vessel based on the Defendant’s legitimate right to collateral security is lawful. Therefore, the Plaintiff’s assertion that differs from this premise is without merit without having to further examine it.

B. Whether the establishment of the instant right to collateral security is null and void due to a conspiracy false representation

According to the overall purport of the statements and arguments by evidence Nos. 3, 8, and 15, the plaintiff was engaged in the same business by taking over the water leisure and the right to permission on the ship of this case from Sdas, and Sdas may recognize the fact that the defendant created the mortgage of this case by taking advantage of the fact that the registration of ownership on the ship of this case remains after transferring all of the business rights to the plaintiff. However, the evidence submitted by the plaintiff alone is insufficient to recognize the fact that the Sdas, in collusion with the defendant for the purpose of obstructing the exercise of the plaintiff's ownership, agreed to form only a external form of the ship of this case against the actual will, and there is no other evidence to prove otherwise.

Therefore, the plaintiff's above assertion cannot be accepted.

4. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance which has different conclusions is unfair, and the plaintiff's claim shall be dismissed. It is so decided as per Disposition.

(attached Form omitted)

Judges Lee Tae-young (Presiding Judge)

1) According to Article 2 subparagraph 1 of the Act on the Development, Management, etc. of Marinas, "marina" means a place designated and publicly notified as a marina zone pursuant to Article 10, where facilities for the entry and storage of marina ships, boarding and leaving a ship, etc., and service facilities for the provision of convenience to the users of such facilities are installed. According to Article 2 subparagraph 3 of the above Act, "marina ship" means a ship (including boats and yachts) provided and used for oil, sports or leisure purposes, which is determined by Presidential Decree. The marinaa harbor refers to a ship (including boats and yachts) used for passengers, trade, etc., which is not an ordinary harbor used for passengers, trade, etc., but is specialized harbor for recreation.

Note 2) See the reasons and main contents of the amendment of Act No. 9870 of Dec. 29, 2009, Ship Act (No. 9870).

3) Furthermore, even if Nonparty 4, the representative of Suss, transferred the instant vessel’s ownership to the Plaintiff along with the instant vessel, including the instant vessel, even if the ownership of the instant vessel was transferred to the Plaintiff on July 3, 2013 by the transfer and acquisition agreement concluded between the Plaintiff and Nonparty 4, the Plaintiff, as the Plaintiff did not register the instant vessel and enter it in the certificate of ship’s nationality (proviso of Article 743 of the Commercial Act). As long as the Plaintiff did not enter it in the certificate of ship’s nationality, it does not oppose the third party (proviso of Article 743 of the Commercial Act). Thus, the Plaintiff cannot oppose the Defendant, the third party, who was established by Suss, who was believed to be the owner of the instant vessel