2014Da44017 Materials Delivery and User Fees

A

1. Effectiveness of the stock company;

2. General construction of a stock company;

Daegu District Court Decision 2012Na16665 Decided June 12, 2014

February 12, 2015

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

1. The possession of an object refers to the objective relationship in which it appears to be a factual control of a person under the social concept. Here, the de facto control does not necessarily refer to only physical and practical control over an object, but should be determined in conformity with the social concept, taking into account the time, space and principal relationship with the object, possibility of exclusion from control of another person, etc. (see, e.g., Supreme Court Decision 92Da38266, Jun. 23, 192).

2. The facts acknowledged by the court below are as follows.

① On November 15, 2010, the Defendants entered into a subcontract with C Co., Ltd. (hereinafter referred to as “C”) on the construction of reinforced concrete (hereinafter referred to as “instant construction”) among the said construction works.

C On November 28, 2010, the Plaintiff entered into a lease contract between the Plaintiff and the Plaintiff for the lease of temporary materials necessary for the instant construction work (hereinafter referred to as “instant lease contract”).

③ Under the instant lease agreement, the Plaintiff supplied temporary materials for building as indicated in the attached Table 1 of the lower judgment (hereinafter “the instant temporary materials”) at the construction site of this case from December 3, 2010 to April 9, 2011, pursuant to the instant lease agreement.

A as an internal director of A, H, on April 9, 201, concluded a lease agreement with D Co., Ltd. (hereinafter referred to as “D”), on April 18, 201, and on May 24, 2011, and each building-related temporary material company and each building-related temporary material company were supplied to the instant construction site from that time. The said company supplied the temporary material for construction at the instant construction site from that time. C, while carrying out the instant construction project, suspended the construction project on July 30, 201 without adjusting the construction cost. The Defendants were settled between C and C and the Defendants on July 30, 2011 and terminated the instant subcontract agreement.

6) After that, the Defendants completed the construction work on the remaining portion of the instant construction work on December 1, 201.

7. The temporary materials of this case and the temporary materials supplied by D, etc. were stored and managed together with no separate sign at the construction site of this case, and thus were not clearly distinguishable from each other.

③ Upon the Plaintiff’s request for the removal of the instant temporary materials that were brought into the construction site of this case, the Defendants brought the instant temporary materials into the construction site of this case by the subcontractor, and on the other hand, the ownership relationship is unclear since the leased temporary materials supplied by C and the Defendants and the sales and purchase materials sold to COD are mixed without distinction. Thus, the Defendants responded to the purport that the instant construction is carried out after undergoing the verification procedure under the presence of the above H, who was the overall management of the instant construction at the construction site of this case.

④ After filing the instant lawsuit, the Plaintiff filed an application against the Defendants for the injunction against the disposal of corporeal movables and the provisional injunction against the transfer of possession thereof with the Daegu District Court 201Kadan 6940, and received the provisional injunction on August 11, 2011. Based on the said provisional injunction order, the Plaintiff completed the execution on August 24, 201, based on the said provisional injunction order (However, as it is difficult for the enforcement officer to separately specify only the temporary materials of the instant case at the time of executing the said provisional injunction, the said provisional materials did not be separately executed).

① The Defendants, who were in need of arranging the construction site by removing all the temporary materials loaded at the construction site of this case from the beginning of December 201, 201, which was the scheduled date of the completion inspection of the instant construction, to be exempt from liquidated damages thereafter, submitted the power of attorney (Evidence No. 8) on November 9, 201, and delivered all the temporary materials loaded at the construction site of this case to D, etc. by November 1, 201.

3. According to the above facts, as in the instant construction site where temporary materials, including the instant temporary materials owned by the Plaintiff, were installed after the conclusion of the subcontract agreement with C and C, the Defendants refused the Plaintiff’s request for removal of the said temporary materials, and thus, the Defendants de facto continued to use and manage the instant temporary materials at the instant construction site until they were dismantled upon the completion of the instant construction project and delivered all the temporary materials loaded at the instant construction site to D, etc. at the end of November, 201. In light of the aforementioned legal principles, the Defendants’ de facto control over the instant temporary materials can be evaluated as the possession of the instant temporary materials sufficiently.

4. Nevertheless, the court below acknowledged the above factual relations, on the grounds that there is a possibility of partial damage to the temporary materials of this case or that there is a lack to deny the Defendants’ de facto control or possession of the temporary materials of this case, such as storage and management in combination with D, etc. supplied by them, and thus, it is difficult to deem that the Defendants occupied the temporary materials of this case from C after the termination of the subcontract agreement of this case. Thus, the court below rejected the Plaintiff’s claim seeking compensation for damages due to the Plaintiff’s failure to return the profits from use equivalent to the rent under the premise of the Defendants’ possession and the impossibility to return the temporary

Therefore, this judgment of the court below is erroneous in the misapprehension of legal principles as to possession of goods, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

5. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below, and remand the case to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-young

A person shall be appointed.