[1] Where a purchaser of a movable property in the possession of a third party keeps the movable property, whether the purchaser satisfies the requirements for the acquisition of possession necessary for the bona fide acquisition of the movable property if he/she transferred the right to claim the return of possession to the transferee and satisfies the requirements for setting up against the transfer of nominative claim

[2] The case holding that the transferee was negligent in failing to know that the transferor did not have the right to dispose of the movable property in good faith

[1] If the transferor has kept the movables entrusted with custody by the owner to a third party, if the transferor transferred the right to request the return to the third party to the transferee, and if the transferor satisfies the requisite for setting up against the assignment of nominative claim, the requirements for acquiring possession necessary for the bona fide acquisition of the movables

[2] The case holding that the transferee was negligent in failing to know that the transferor did not have the right to dispose of the movable property in good faith

[1] Article 249 of the Civil Code / [2] Article 249 of the Civil Code

[1] Supreme Court Decision 63Da775 delivered on May 5, 1964 (No. 12-1, 61), Supreme Court Decision 77Da1872 delivered on January 17, 1978 (Gong1978, 10607), Supreme Court Decision 80Da2530 delivered on August 20, 198 (Gong1981, 14290)

Limited Partnership Co., Ltd. (Attorney Lee Jae-soo, Counsel for the defendant-appellant)

Dong Branch River Co., Ltd. (Attorney Lee Jae-soo et al., Counsel for the defendant-appellant)

Busan High Court Decision 96Na10812 delivered on September 25, 1997

The judgment of the court below is reversed and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. Facts acknowledged by the court below

The court below acknowledged the following facts based on the evidence produced by the court below.

A. The non-party Steel Co., Ltd. (hereinafter referred to as the "Ssung Steel Co., Ltd.") concluded a sales agency contract with the defendant around 1983 to sell the steel products manufactured by the defendant and operated it. The above sales agency contract includes the contents that the Ssung Steel will be supplied with the steel products from the defendant, and its ownership shall be reserved to the defendant until the payment of the price is made in full, and only when the price is paid in full. However, there is no provision on restrictions on sales, such as that the steel products supplied until the payment of the price is made cannot be sold. In doing the above sales agency business, the Ssung Steel Co., Ltd. or the defendant purchased the steel products before the payment of the price of the steel products made in full and notified the defendant that the ownership of the steel products purchased between them is reserved to the defendant.

나. 성일철강은 1989년경부터 소외 유한회사 유성강재(이하 유성강재라 한다)에게 철판 구매자의 요구에 따라 철판을 펴서 재단하는 임가공 작업을 의뢰하고 가공작업이 완료된 철판은 직접 가져가거나 구매자로 하여금 이를 인수하게 하고, 혹은 코일 상태의 철판을 가공작업을 거치지 아니한 채 그대로 판매하여 반출하기도 하였는데, 1995. 11. 27.을 기준으로 유성강재에게 가공을 의뢰하여 유성강재가 보관 중인 철판은 피고로부터 공급받은 686.58ｔ과 소외 동국제강 주식회사 등으로부터 공급받은 80.075ｔ, 합계 766.655ｔ이다.

C. The plaintiff company's purpose is to provide telecommunications facility construction business and electrical equipment supply business. From April 1992 to October 30, 1995, non-party 1's representative employee non-party 2 issued and delivered 32 promissory notes with the total face value of 1,024,215,190 won as financing bills. Of the above bills, bills issued before August 1995 were normally settled with the payment of the Sung Steel. But from September 30 of the same year to October 30 of the same year, with the total face value of 359,71,130 won as financing of Busan Bank and Port Investment, etc., the above bills were discounted with the maturity of 1,024,215,190 won until November 27 of the same year and the above bills were settled with the maturity of 3,198,200 won to the plaintiff from September 30 of the same year.

라. 이에 원고와 성일철강은 1995. 11. 27. 위 융통어음 발행에 관하여 원고가 성일철강에 대하여 가지는 금 359,711,130원의 할인어음 결제용 자금 지급채권의 변제에 갈음하여 성일철강이 유성강재에 임가공을 위하여 보관시킨 위 철판 766.655ｔ을 원고에게 양도하기로 약정하고, 같은 날 성일철강의 대표이사인 소외 2는 유성강재의 대표이사인 소외 3에게 위 양도사실을 알렸고, 유성강재는 원고의 요구에 따라 원고에게 위 철판을 원고를 위하여 보관하고 있다는 취지의 보관증을 작성·교부하였으며, 소외 3은 원고에게 위 철판을 처분하겠다면 그 매수자를 알아 봐 주겠다고 제의하였고, 원고는 이 제의를 받아들였다.

마. 성일철강은 같은 달 28. 피고에게 위 철판 중 피고로부터 공급받은 686.58ｔ(이하 이 사건 철판이라 한다)에 대한 공급대금을 지급하지 아니한 상태에서 부도를 내고 도산하였다.

F. The Defendant, upon the bankruptcy of the Sung Steel, found the location of the steel plate supplied to the Plaintiff as it was difficult to recover KRW 1,348,00,000, the aggregate of the attempted steel sales proceeds, including the attempted steel sales proceeds, for the Sung Steel. As a result, the Defendant became aware that the steel plate was kept in the Sungsung Steel and that the Plaintiff asserted to acquire ownership. On the 29th of the same month, the Defendant notified the Defendant on the 30th of the same month that he had ownership of each of the instant steel plates, and each of the above notifications reached the Plaintiff and Yusung Steel, respectively.

G. The Plaintiff was unaware of the fact that the ownership of the instant steel plate was reserved to the Defendant before receiving the aforementioned notification from the Defendant.

H. After that, the Plaintiff paid the amount of the bill to the last holder at the maturity of the said bill.

2. The judgment of the court below

Based on the above facts, the court below acknowledged that the Sung Steel decided to transfer the steel plate of this case to the plaintiff in accordance with the method of transferring the right to request the return of genetic steel in substitution for payment of the above payment claim, and notified the plaintiff of the transfer of the above right to request the return. The court below determined that the defendant did not impose restrictions on the defendant such as the ownership until the full payment of the price was made in supplying steel products to the Sungsung Steel, but it did not sell the steel products to the purchaser before full payment was made, and there was no notification that the purchase price was reserved to the defendant. The plaintiff was engaged in telecommunications facility construction business and electrical material supply business, and therefore, the plaintiff did not know about the transaction of the steel products, because the plaintiff was engaged in the manufacturing, processing, and distribution business of the steel products, and notified the plaintiff of the transfer of the above right to request the return. Therefore, the court below determined that the plaintiff did not have any particular doubt about the ownership of the steel product of this case, and that the plaintiff did not know the ownership of the above steel products at the time of the purchase of this case.

3. Judgment of the Supreme Court

A. As to the grounds of appeal Nos. 1, 4, and 5

Examining the relevant evidence in comparison with the records, the court below is just in finding that the court below accepted the right to request the return of the instant steel plate kept in Sung Steel as a result of the transaction that the plaintiff lent a financing bill to Sung Steel, and it did not err by misapprehending the facts against the rules of evidence in light of the rules of evidence.

Furthermore, if the transferor transferred the right to request the return to a third party, and if the transferor satisfies the requirements for setting up against the transfer of nominative claim, it shall be deemed that the transferor satisfies the requirements for the acquisition of possession necessary for the bona fide acquisition of the movable property, and there is no error in the misapprehension of legal principles as to bona fide acquisition, and there is no ground for appeal on this part.

B. As to the grounds of appeal Nos. 2 and 3

In full view of the facts duly admitted by the court below and all the circumstances revealed in the records, since the representative member of the plaintiff company, as the representative member of the non-party 2 and the non-party 1 of the non-party 2 of the non-party 1 of the non-party 1 of the non-party 2 of the non-party 2 of the non-party 2 of the non-party 2 and the defendant company, even if their types of business vary, they have been engaged in a continuous transaction of lending and collecting the value of KRW 1 billion at face value 32 per notes over 3 years and 6 months. Thus, even though the non-party 1 did not know of the ownership reservation, it should be viewed that the non-party 1 had known that the non-party 1 was the defendant and the sales agent of the non-party 1 and the supplier of the non-party 2 of the non-party 1 of the non-party 1, even though they did not know that the non-party 1 had been negligent in the plaintiff's non-party 2's non-party 1.

Nevertheless, the court below determined that the plaintiff was not negligent on the basis of the duty of care required for ordinary ordinary transactions on the ground that there is only a provision on ownership reservation under the sales agency contract of this case and there is no provision on sales restriction, and the defendant or Sung Steel did not notify the buyer of the fact that ownership reservation was made. The plaintiff's company is considered as the type of business, and it is a door to the transaction of steel products, and the plaintiff's company knew of ownership reservation only after being notified by the defendant, and the ownership relation of the iron plate was not publicly announced externally. Thus, the court below erred by misapprehending the facts against the rules of evidence or by misapprehending the legal principles on negligence. Thus, the defendant's appeal pointing this out is justified.

4. Therefore, the lower judgment is reversed and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo Sung-sung (Presiding Justice)