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(영문) 대구고등법원 2019.08.28 2019나20635
유체동산인도 청구의 소
Text

1. The judgment of the first instance court, including the claims extended in the trial, shall be modified as follows:

The defendant is against the plaintiff.

Reasons

1. Facts of recognition;

A. On February 27, 2013, a cooperative concluded a mortgage contract with the Plaintiff (title prior to the change: D), and completed the registration of the establishment of a mortgage with respect to the buildings with the maximum debt amount of 3,640,000,000 won on the E-Gun in Ulsan-do, Ulsan-do, which was owned by the Plaintiff on the same day, and 1,868 square meters on the F, 1,868 square meters (hereinafter collectively referred to as “instant land”), and the tourist hotel with the 7th above ground level on each of the above land (if there is no 4th floor at the site of the building, and no 8th floor on the ground level), on each of the above land (hereinafter referred to as “instant building”).

(B) The right to collateral security following the registration of the establishment of a neighboring mortgage (hereinafter referred to as the "mortgage of this case").

C. On June 29, 2016, a voluntary auction on the instant land and building (hereinafter referred to as “instant auction”) was commenced as at the request of the cooperative. In the said auction procedure, the Defendant (former Title: H Co., Ltd.) received a decision to permit the sale of the instant land and building on May 8, 2017, and acquired the ownership on June 2, 2017.

C. Around August 2017, the Defendant came to run hotel business on the instant building after being handed over the instant land and building from the Plaintiff. From that time, the Defendant occupied the goods listed in the [Attachment 3] list (hereinafter “instant goods”).

[Reasons for Recognition] Unsatisfy Facts, Gap evidence 1 through 5, 7, Eul evidence 2 (including branch numbers; hereinafter the same shall apply) or images, and the result of on-site inspection conducted by the commissioned judge of the first instance court, the purport of the whole pleadings

2. Judgment on the main defense of this case

A. The Defendant’s argument that the Plaintiff included items in paragraphs (11) through (13) of the attached list 3 as the object of the request for extradition upon filing the instant lawsuit, but excluded it from the process of reducing the claim after the on-site inspection and inquiry in the first instance trial. It should be dismissed to include the said items again through the expansion of the purport of the claim in the trial.

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