208Na85187 Confirmation of the existence of a lien

○○ Mutual Savings Bank

Busan ○○○○○ Dong 00 - 00 - 00

Head of representative director ○

Law Firm Cheonghae, Attorney Lee Dong-chul, Counsel for defendant-appellant

1. ○ Engineering Co., Ltd.

Incheon ○○○-dong ○○-dong - ○, 2 stories

representative director ○○

2. ○○ L&C site;

Incheon ○○-gu ○○ Dong ○ ○

Heading director ○○

3. Female o.b.

Incheon ○○-gu ○○ Dong ○ ○

4. Red○○.

Pyeongtaek-si ○○ ○○ - ○ ○○ ○○ ○○ ○○-dong 0

5. Maximum○○.

Incheon ○ ○○ Dong-dong

6. Ma○○.

OO-gu Incheon OO-dong

7. Kang○○.

Incheon ○○-gu ○○ Dong 10 - 00 - 00 ○ apartment ○○

[Defendant-Appellant] Konuri Law Firm, Attorney Cho Sung-hoon, Counsel for defendant-appellant-appellant-appellant-appellant-

Jind Majors

Suwon District Court Decision 2006Gahap6987 Decided August 21, 2008

July 10, 2009

September 4, 2009

1. Revocation of a judgment of the first instance;

2. The plaintiff's claims against the defendants are all dismissed.

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

1. Purport of claim

Matters concerning each real estate listed in the separate sheet of the Defendants (hereinafter referred to as "each of the instant sections")

The right of retention is confirmed not to exist.

2. Purport of appeal

The order is as set forth in the text.

1. Facts of recognition;

The following facts do not conflict between the parties, or can be acknowledged by comprehensively considering the following facts: Gap evidence 1, Gap evidence 2-1, Gap evidence 6, 7, Eul evidence 9-1 through 31, 34 through 42, Eul evidence 5, Eul evidence 1, Eul evidence 2-2, Gap evidence 6, 7, Eul evidence 9-1 through 31, 34 through 42, Eul evidence 5, and Eul's testimony

A. On December 26, 2003, ○ Mutual Savings Bank (hereinafter referred to as “○ Mutual Savings Bank”) is a stock company, ○ Mutual Savings Bank (hereinafter referred to as “○○ Mutual Savings Bank”).

○ Industrial Development Co., Ltd. (hereinafter referred to as “○ Industry Development”) extended a total of KRW 4 billion to ○○ Industrial Development Co., Ltd. (hereinafter referred to as “○○ Industrial Development”).

B. On March 3, 2004, ○○ Industrial Development newly constructed ○○○○○○-dong 00 - 00 - 00 - 00 - 5 ○○○○○ apartment building (hereinafter “the instant apartment building”), which is an aggregate building including each of the instant sections, and entered into a mortgage agreement on each of the instant sections in order to secure ○○ Mutual Savings Bank’s obligation for loans on December 26, 2003 between ○ Mutual Savings Bank and ○○ Mutual Savings Bank. On June 16, 2004, each of the instant sections of this case completed the registration of establishment of a mortgage in the name of ○ Mutual Savings Bank on each of the instant sections.

C. The Defendants possessed each of the instant partitioned buildings with the claim for construction cost as to the new construction of the instant condominiums, but around July 1, 2005, in order to recover the Defendants’ claims through the sale of each of the instant partitioned buildings, the claim group of ○ Industries Development including the Defendants sold each of the instant partitioned buildings for a limited period of three months from July 1, 2005 to ○○ Mutual Savings Bank and allocate the sales price to ○○ Mutual Savings Bank. The claim group of ○○ Industries Development, including the Defendants, renounced all of the rights as ○○ Industrial Development Credit Group, such as exercising lien, and did not assert any rights as to ○○ Mutual Savings Bank.

D. Meanwhile, on July 22, 2005, the Plaintiff acquired a loan claim for industrial development from the bank of ○○○ Mutual Savings and contractual status which forms the basis of each right to collateral security and each right to each of the instant partitioned buildings in accordance with the previous decision, and applied for voluntary auction of each of the above listed real estate in the separate sheet No. 38 to 40 of the [Attachment List No. 38 to 26911 on July 22, 2005; on July 25, 2005, around 2005, around 2005, around 2005, around 26898 by the same court; on each of the above listed real estate in the separate sheet No. 21 to 26928 on July 27, 2005, the Plaintiff voluntarily withdrawn the auction of each of the above listed real estate in the separate sheet No. 21 to 26928 on July 28, 2005; and on each of the above list No. 25.751 to the Plaintiff

E. After that, each of the instant partitioned buildings has not been sold at all for three months since the date of the instant agreement. On January 11, 2006, the Plaintiff received a voluntary decision to commence the auction on the 35 sections of the instant condominium buildings, including each of the real estate listed in [Attachment 1 through (4), 8 through (20, 25 through 40, and 25 through 40 of the [Attachment 1] Table 1 through (4), 8 through (20, and 21 to 206, respectively. Defendant ○ Engineering Co., Ltd and Defendant ○○ Construction Co., Ltd reported each of them in the said voluntary auction procedure.

2. The parties' assertion

The plaintiff has the effect of the agreement of this case on the plaintiff. Since three months have elapsed since the grace period under the agreement of this case was three months, the defendants' right of retention on each of the partitioned buildings of this case was extinguished by abandonment. Even if not, the defendants did not occupy each of the divided buildings of this case, so the right of retention was extinguished.

The Defendants, “The validity of the agreement in this case does not extend to the Plaintiff, even though the agreement in this case was concluded by the Financial Supervisory Commission with respect to loans and claims for industrial development of ○○ Mutual Savings Bank, and the status as to the security right thereof, according to the previous decision. Even if the agreement in this case is effective against the Plaintiff, the Plaintiff applied for voluntary auction against some of the units of this case, with the agreement to suspend the time limit for the commencement of voluntary auction procedure based on the agreement in this case, and thereby, the agreement in this case was null and void. Furthermore, the Defendants asserted to the purport that the agreement in this case occupies each Section of this case.

3. Determination

A. First, we examine whether the agreement in this case affects the Plaintiff.

According to the facts acknowledged above, the agreement of this case was not postponed for three months by the claim group related to the construction of the aggregate building of this case by ○○ Industrial Development, including the defendants, from the ○○ Mutual Savings Bank for the commencement of the auction procedure for each of the divided buildings of this case, but the bond group led by the above bond group for three months, sold each of the divided buildings of this case, and decided to distribute the proceeds of the sale at a certain ratio between ○○ Mutual Savings Bank and the bond group, and the bond group, upon the grace period of the above three months, has waived all rights such as the right of retention as to each of the divided buildings of this case. Therefore, it is necessary to examine whether the agreement of the Financial Supervisory Commission is transferred to the plaintiff as a party to the agreement of ○○ Mutual Savings Bank by the preceding decision and the validity of the agreement of this case also affects

The contract that the Financial Supervisory Commission has issued to an insolvent financial institution under Article 14 (2) of the former Act on the Structural Improvement of the Financial Industry (amended by Act No. 7428 of Mar. 31, 2005; hereinafter referred to as the "Act on the Structural Improvement of the Financial Industry") is a method of liquidation of insolvent financial institutions in which a third party takes over and takes over a specific part of the assets and liabilities of an insolvent financial institution in the form of transferring contractual status arising from financial transactions, and where the difference between the transferred liabilities and assets value is paid to an underwriting financial institution, and its nature constitutes an administrative disposition which causes legal effect of which contractual status is transferred by a unilateral decision of the Financial Supervisory Commission (see Supreme Court Decision 2001Da3807, Apr. 12, 2002).

(2) The scope of the rights and obligations to be succeeded by the undertaking financial institution in accordance with the preceding decision.

Article 14-2 (1) of the Act on the Structural Improvement of the Financial Industry shall succeed to the rights and duties of the insolvent financial institution under a contract included in the decision of the transfer of contracts pursuant to the provisions of Article 14 (2) of the Act on the Structural Improvement of the Financial Industry: Provided, That where there is a mortgage taking claims as claims secured by a contract subject to the transfer of contracts as claims, the mortgage shall be acquired by the underwriting financial institution when a notice is given pursuant to the provisions of paragraph (2).

However, the scope of "the rights and obligations of insolvent financial institutions" under a contract subject to succession as stipulated in Article 14-2 (1) above is problematic. As seen earlier, since the pre-determination of a contract constitutes an administrative disposition in which the contractual status that occurred in a financial transaction by a unilateral decision of the Financial Supervisory Commission takes effect in the private law where the contractual status is transferred by a unilateral decision of the Financial Supervisory Commission, if conflicts of interest with other creditors, the scope of rights and obligations to be transferred by a unilateral administrative disposition should be limited within a reasonable scope in consideration of equity with other creditors.

Therefore, the scope of ‘the rights and obligations of insolvent financial institutions by contract' that are succeeded by the pre-determination of the contract is stipulated in Article 14-2(1) of the Act on the Structural Improvement of the Financial Industry, and the scope of ‘the rights and obligations of insolvent financial institutions by the pre-determination of the contract shall include only the mortgage, etc. in the case of a mortgage that covers the rights and obligations under the contract (a loan claim or the obligation to return a deposit falling under the original business of a financial institution) and the claims under the contract as the secured claim, and shall not include the rights and obligations arising from other juristic acts which are not related to the financial transaction

Therefore, in a case where a contract was previously rendered, whether the rights and obligations are transferred to any extent within a certain scope through a decision for contract transfer should be determined in accordance with the provisions of the previous decision. In a case where the provision is unclear and its scope is not clearly known, the determination should be made by comprehensively taking into account the purport and circumstance of the decision for contract transfer, and the equitable outcome between the parties involved in the transferred contract (see Supreme Court Decision 2003Da66691, Oct. 27, 2005).

(3) Whether the agreement in this case has an effect on the Plaintiff, a acquiring financial institution, or the Plaintiff, according to the previous decision of the Financial Supervisory Commission, was transferred from ○○ Mutual Savings Bank the loan claims for industrial development of ○○○ Mutual Savings Bank, and contractual status which forms the basis for the creation of each right to collateral security and each right to collateral security regarding each of the instant partitioned buildings. In light of the above facts, the agreement in this case seems to have reached an agreement between ○○ Industrial Development Credit Bank and ○○ Industrial Development Credit Union’s credit status as the Defendants, including the Defendants, on the status of the mortgagee on each of the instant partitioned buildings, on the part of ○○ Mutual Savings Bank, on the specific execution of the above collateral security or the collection plan of collateral security claims and on the exercise or waiver of the right to collateral security and it is difficult to view it as an agreement on the status that forms the basis of the creation of the above collateral security itself

In addition, in light of the purpose of the pre-decision, the decision for contract transfer is aimed at prompt reorganization of claims and debts relations of insolvent financial institutions by acquiring financial institutions by transferring their status as creditors or debtors of insolvent financial institutions. Therefore, the scope of the effect of the pre-decision is limited to the transfer of the status of insolvent financial institutions for the reorganization of debts and the transfer of the status of such institution, etc., and it cannot be said that the agreement on the collection of claims between creditors is also effective.

Furthermore, with respect to the instant agreement in which there is a possibility of conflict of interests between the creditors with respect to the ○○ Mutual Savings Bank, it is difficult to say that the status of the parties to the agreement is naturally transferred to the Plaintiff by the previous decision without going through separate civil procedure (e.g., contract acceptance agreement between the Plaintiff and the ○○ Mutual Savings Bank and the Defendants, etc.).

Therefore, the validity of the instant agreement does not extend to the Plaintiff, who is the acquiring financial institution.

B. Next, as to whether the Defendants possessed each of the instant sections, it should be viewed as to whether the Defendants possessed the respective sections of this case.

In full view of the entries in the evidence Nos. 6 through 9 and the overall purport of the pleadings in each video of No. 15-1 through 18, the defendants completed the construction of the aggregate building of this case, and thereafter, from that time to that time, they are under the exercise of right of retention because they failed to receive construction cost on the claims for construction cost for the development of ○○ Industries, etc., based on the construction cost of each of the instant partitioned buildings, and thus are exercising a right of retention, they are prohibited from entering. Meanwhile, in light of the above facts of recognition, it is reasonable to deem that the defendants occupied each of the instant partitioned buildings as a lien holder.

C. Therefore, the agreement of this case does not affect the plaintiff, and the defendants occupy each of the separate sections of this case with claims arising in relation to each of the separate sections of this case. Thus, the plaintiff's claim of this case against the defendants seeking confirmation of non-existence of lien on each of the separate sections of this case is unreasonable without any need to examine further.

4. Conclusion

Therefore, the plaintiff's claim against the defendants shall be dismissed in its entirety, and the judgment of the court of first instance is unfair in conclusion, and it is so decided as per Disposition by accepting the defendants' appeal.

Judges Jo Hee-de;

Judge Park Jong-sung

Judges Kim Jae-sub

A person shall be appointed.