(영문) 대구고등법원 2018.6.21.선고 2017나20754 판결

It is confirmed that the defendant's right of retention does not exist with respect to each real estate listed in the attached list (the plaintiff changed the purport of the claim to this court).

2. Purport of appeal

Of the judgment of the first instance court, the part against the defendant is revoked, and the same judgment as the above purport of the claim is sought (the plaintiff has been modified in this court by modifying the purport of the appeal as mentioned above).

Reasons

1. Basic facts

The reasons for this part are as follows, the part of the second to fourth to tenth of the judgment of the court of first instance is the same as the corresponding part of the judgment of the court of first instance (Provided, That the part of the "Defendant C" in the corresponding part is both referred to as the "Defendant C"), and it is accepted by the main text of Article 420 of the Civil Litigation Act.

A. Part 7 of the second sentence of the judgment of the court of the first instance, "D and B, together with Defendant C, an investor of construction capital, shall be "D and B shall be financed with funds from the Defendant".

B. From October 2014, 2014, the third party decision of the court of first instance, "E began to occupy the apartment of this case from the time of completion of the construction (E had the defendant F, who is its employee, occupy the apartment of this case)" part of "G, H, I, and J (hereinafter referred to as "G, etc.") have started to occupy the apartment of this case in such a way as to control the entry of the apartment of this case, since the whole building of this case is in possession of the right of retention with the claim for construction cost, since it is in possession of the right of retention, it has been attached to the entrance, etc. of the above apartment of this case."

C. Each entry and image of Eul Nos. 1 through 7 (including paper numbers), and some testimony of witness B in the fourth 9-10th s. of the judgment of the court of the first instance shall be made "each entry or image of Eul Nos. 1 through 8 (including paper numbers), witness B of the first instance trial, and witness of this court, and witness K of this court."

2. Summary of the plaintiff's assertion

A. The Defendant, along with D and B, falls under the actual owner of the instant apartment, and even if not, the Defendant constitutes a partner who runs the business related to the construction of the instant apartment jointly with D and thus, the said D, B, and C constituted a substantial co-owner of the instant apartment. Therefore, the instant apartment cannot be deemed as falling under the “other’s goods that can exercise the right to retention of the Defendant’s assertion” in relation to the Defendant. Thus, the Defendant sought a decision like the above purport of the claim.

B. G, etc. did not perform the contracted construction related to the new construction of the instant apartment, or received the payment of the construction cost in full. Accordingly, G, etc. does not have a claim for the construction cost corresponding to the secured claim of the Defendant’s right of retention regarding the instant apartment as to the instant apartment, and thus, sought a judgment as stated in the above purport of the claim.

C. Since the above lien transfer agreement entered into with G et al. is invalid because it constitutes a lawsuit trust mainly for the purpose of the lawsuit trust, the judgment, such as the purport of the above claim, is sought.

D. Even if the defendant has a lien as alleged by the defendant with respect to the apartment of this case, the defendant, without permission of the debtor, leased the apartment of this case to a third party and received monthly salary, etc., and thus, the right of retention was extinguished pursuant to Article 324, Article 324, Paragraph 2, Paragraph 3, and Paragraph 2 of the Civil Code due to a lien holder's breach of the duty of care as a lien holder. Thus, the defendant is sought a judgment identical

3. Judgment on the plaintiff's assertion

A. As to the plaintiff's first argument

1) We examine the apartment of this case. D is the actual owner of the apartment of this case, and K is the owner and the title holder of the apartment of this case as acknowledged in the above basic facts.

2) However, all the evidence submitted by the Plaintiff including the testimony of the above B and K up to this court and the circumstances asserted by the Plaintiff, such as the circumstance where the Defendant partially invested funds related to the construction of the instant apartment, are insufficient to recognize the Defendant as the actual quality owner who constructed the instant apartment jointly with the above D, etc., and there is no other evidence to acknowledge this otherwise. In addition, there is no evidence to prove that the Defendant, together with the above high-priced D, was discharged from the partner who conducts the business related to the construction of the instant apartment.

3) Ultimately, this part of the Plaintiff’s assertion based on a different premise is without merit to examine further.

B. As to the second argument by the Plaintiff

1) In the process of constructing the instant apartment under the name of K, which is the owner of the building in question, as the owner of the building in question, D, as the owner of the building in question, and from August 11, 2013 to August 1, 2014, G, etc. entered into each of the above contracts for the construction of the instant apartment in question with G, etc., and G, etc. performed the contracted construction. The apartment in question was completed on July 1, 2014. However, G, H, and I alleged that the apartment in question had not been paid out of the construction cost of the instant apartment in question, and filed an application for the payment order with L, which is the owner of the building in question, to receive the payment order (K did not object to the above order for the above payment order), and that G, etc. occupied the apartment in question from October 2014 to August 1, 2014, which is the date of completion of the instant apartment in question, and that Defendant J acquired possession from G to 215.

2) In the same way, even if the evidence submitted by the Plaintiff up to this court and the purport of its assertion were to be considered, G, etc., upon completion of the contracted construction work for the apartment of this case, had a claim against K or D, the title holder of the construction of the apartment of this case, and the actual owner of the apartment of this case, and the defendant can be deemed to have been assigned each right of retention from the G, etc. who occupied the apartment of this case in order to obtain each of the above claims, and the defendant is the lien holder for the apartment of this case.

3) Ultimately, we cannot accept this part of the Plaintiff’s assertion based on a different premise.

C. As to the third argument by the plaintiff

1) In a case where the assignment, etc. of a claim primarily takes place for the purpose of making another person conduct an act of litigation, even if the assignment of claim does not constitute a trust under the Trust Act, it shall be deemed null and void as it is analogically used. Whether it is the principal purpose of litigation shall be determined in light of all the circumstances, including the details and methods of concluding the contract of transfer of claim, interval between the transfer contract and the filing of the lawsuit, and the status relationship between the transferor and the transferee (see, e.g., Supreme Court Decision 2012Da23412, Mar. 27, 2014).

2) Based on the above legal principles, the health class, the facts of this case acknowledged as above, and the evidence of this case are as follows. ① The defendant transferred a lien for the claim for the unpaid construction price from G, etc. around January 2015 to G, etc. on the condition that he pays 50% of the collection price to G, etc. on the date of payment of auction balance, and accordingly, possesses and manages the apartment of this case and exercises a lien on the apartment of this case. ② The defendant is not deemed to have been mainly engaged in the act of performing a lawsuit before the acquisition of the above lien, and the defendant's above acquisition cannot be determined as having been for the principal purpose of a lawsuit trust. ③ In light of the above legal principles, even if the plaintiff submitted the above evidence and the circumstances up to the date of payment of auction balance, the defendant cannot be deemed to have actually recovered the unpaid construction price claim from G, etc. at the time of the above acquisition, the defendant's acquisition of this case cannot be concluded as having been for the principal purpose of a lawsuit trust.

3) Ultimately, the Plaintiff’s assertion on this part based on a different premise is without merit.

D. As to the plaintiff's fourth argument

1) Even if the evidence submitted by the Plaintiff to this court, including each of the statements and images of Gap evidence Nos. 13 and 14 (including branch numbers, if any) and the testimony of the above K, and the circumstances of its assertion are considered, it cannot be readily concluded that the defendant, at his own discretion, violated his duty of care as a lien holder by leasing the apartment of this case to a third party and receiving monthly rent, etc., and there is no other evidence to acknowledge it otherwise.

2) Even if the Defendant has violated the duty of care as a lien holder with respect to the apartment of this case, even if Article 324(3) of the Civil Act provides that “the debtor’s “the owner of the thing is included in the owner of the thing,” but it does not include the mortgagee who has no right to use or benefit from the object of the lien, or the first beneficiary pursuant to the security trust contract like the Plaintiff, as the Plaintiff, who has no right to use or benefit from the object of the lien (see Supreme Court Decision 2006Da2990, Sep. 22, 2006; 2006Da3006, Sept. 2, 2006). However, the fact that the Plaintiff falls under the first priority beneficiary pursuant to the security trust contract concluded with M is recognized as having been based on the facts as seen earlier. Accordingly, the Plaintiff cannot be deemed as a person who can claim the extinguishment of the right of retention pursuant to Article 324(3) of the Civil Act, and otherwise, there is no evidence to prove that the right of this case was extinguished pursuant to Article 324(3) of the Civil Act.

3) Ultimately, this part of the Plaintiff’s assertion based on a different premise can not be seen as either a mother or a part of it.

4. Conclusion

Therefore, the Plaintiff’s claim of this case shall be dismissed as it is without merit. Of the judgment of the court of first instance, the part concerning the appeal shall be modified in accordance with the Plaintiff’s above amendment of the purport of the claim, but the Plaintiff’s claim of this case against the appeal shall be dismissed. It is so decided as per Disposition (On the other hand, in light of the various circumstances as seen earlier, even if the Plaintiff considered all the contents of the reference documents and materials attached thereto submitted to this court after the date of closing argument of this case, it is difficult to reverse the above judgment).

Judges

Gabbly (Presiding Judge)

Jinsu

[Judgment]

Note tin

1) In this court, the Plaintiff withdrawn the lawsuit against the joint Defendant F in the first instance trial.

2) Article 324 (Duty of due care of the lien holder) ① The lien holder shall possess the thing in custody with the care of a good manager.

No use or lease of, or provision of security for, a thing kept in custody without falling: Provided, That this shall not apply to the use necessary for the preservation of the thing kept in custody.

If a right holder violates the provisions of the preceding two paragraphs, the debtor may demand the extinction of the right of retention.

3) Any trust, the principal purpose of which is to have the trustee conduct procedural acts, as provided in Article 6, shall be null and void.

section 3.

Site of separate sheet

List

(1)[the indication of one building]

○○○○○○○○○○○○- OOOOOO ○○○○ ○○○○

Multi-family housing of reinforced concrete structure (framed) concrete roof 00 square meters;

【Indication of the building on the exclusive ownership】

A multi-story of reinforced concrete structure No. 000 heading 63.34m

【Indication of Land Subject to Site Right】

1. ○○○○○ ○○ ○○ ○○ ○○ ○○ ○○ - ○ 937 square meters;

【Indication of Site Right】

1. Ownership: 52.06/937 of the ownership and site rights;

2. [Indication of one building]

○○○ ○○○○ ○○ ○○ ○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○○ ○ ○

Multi-family housing of reinforced concrete structure (framed) concrete roof 00 stories;

【Indication of the building on the exclusive ownership】

A multi-story of reinforced concrete structure No. 000 heading 63.34m

【Indication of Land Subject to Site Right】

1. ○○○○○○○○○○○-○○○○ 937m wide by 937m wide;

【Indication of Site Right】

1. Ownership: 52.06/937 of the ownership and site rights;

3. [Attachment of one building]

○○○○○○○○○○○○ O-O 000 0 0 0 0

Multi-family housing of reinforced concrete structure (framed) concrete roof 00 stories;

【Indication of the building on the exclusive ownership】

built of reinforced concrete structure ○○○○○ heading 63.34

【Indication of Land Subject to Site Right】

1. ○○○○○○○○○○○-○○○○ 937m wide by 937m wide;

【Indication of Site Right】

1. Ownership: 52.06/937 of the ownership and site rights;

4. [Indication of one building]

○○○○○○○○○○○○-OOOOOO ○○○ ○○○○

Multi-family housing of reinforced concrete structure (framed) concrete roof 00 stories;

【Indication of the building on the exclusive ownership】

○○○○○○-ho Lake 63.34 square meters of reinforced concrete structure

【Indication of Land Subject to Site Ownership】

1. ○○○○○ ○○ ○○ ○○ ○○ ○○ ○○ - ○ 937 meters large 937 meters

【Indication of Site Right】

1. Ownership: 52.06/937 of the ownership and site rights;

5. [Indication of one building]

○○○○○○○○○○○ O-OOOO ○○ ○○○ ○○○

Multi-family housing of reinforced concrete structure (framed) concrete roof 00 stories;

【Indication of the building on the exclusive ownership】

○○○○○○ Building of reinforced concrete structure 63.34M

【Indication of Land Subject to Site Ownership】

1. ○○○○○○○-O-O in large scale 937 meters;

【Indication of Site Right】

1. Ownership: 52.06/937 of the ownership and site rights;

6. [Indication of one building]

○○○○○○○○○○○○○ O-O 000 teas ○○ 000

Multi-family housing of reinforced concrete structure (framed) concrete roof 00 stories;

【Indication of the building on the exclusive ownership】

built of reinforced concrete structure ○○○○○ heading 63.34

【Indication of Land Subject to Site Ownership】

1. ○○○○○ ○○ ○○ ○○ 00-0 large 937

【Indication of Site Right】

1. Ownership: 52.06/937 of the ownership and site rights;

7. [Indication of one building]

○○○○○○○○ O-O 000 O 000 ○○ dong

Multi-family housing of reinforced concrete structure (framed) concrete roof 00 stories;

【Indication of the building on the exclusive ownership】

built of reinforced concrete structure ○○○○ heading 63.34m

【Indication of Land Subject to Site Right】

1. ○○○○○○○○○ ○○○ ○○ ○○- ○○ 937m wide by 937m wide;

【Indication of Site Ownership】

1. Ownership: 52.06/937 of the ownership and site rights;

8. [Indication of one building]

○○○○○○○○○○ 000 - 00 OOOO ○○ ○○○ ○○

Multi-family housing of reinforced concrete structure (framed) concrete roof 00 stories;

【Indication of the building on the exclusive ownership】

○○○○○○ Building of reinforced concrete structure 63.34M

【Indication of Land Subject to Site Ownership】

1. A square paper about 00-0 to 937m of square paper about 00 ○○○ Military ○○○ ○○ ○○ ○○ ○;

【Indication of Site Right】

1. Ownership: 52.06/937 of the ownership and site rights;

9.[A sign of one building]

○○○ ○○○○ ○○ ○○ ○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○○ ○ ○

Multi-family housing of reinforced concrete structure (framed) concrete roof 00 stories;

【Indication of the building on the exclusive ownership】

A multi-story of reinforced concrete structure No. 000 heading 63.34m

【Indication of Land Subject to Site Right】

1. ○○○○○○-O-O-O- 937 square meters;

【Indication of Site Right】

1. Ownership: 52.06/937 of the ownership and site rights;

10. [Indication of one building]

00 ○○○○○○○ O-O 000 O 000 tea ○○ ○○

Multi-family housing of reinforced concrete structure (framed) concrete roof 00 stories;

【Indication of the building on the exclusive ownership】

A multi-story of reinforced concrete structure No. 000 heading 63.34m

【Indication of Land Subject to Site Right】

1. ○○○○○○-O-O-O- 937 square meters;

【Indication of Site Right】

1. Ownership: 52.06/937 of the ownership and site rights;

11. [Indication of one building]

○○○○○○○○○○ 000 - 00 OOOO ○○ ○○○ ○○

Multi-family housing of reinforced concrete structure (framed) concrete roof 00 stories;

【Indication of the building on the exclusive ownership】

○○○○○○-ho Lake 63.34 square meters of reinforced concrete structure

【Indication of Land Subject to Site Right】

1. ○○○○○○○○○○○-○○○○ 937m wide by 937m wide;

【Indication of Site Right】

1. Ownership: 52.06/937 of the ownership and site rights;

12. [Indication of one building]

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ movement

Multi-family housing of reinforced concrete structure (framed) concrete roof 00 stories;

【Indication of the building on the exclusive ownership】

built of reinforced concrete structure ○○○○ heading 63.34m

【Indication of Land Subject to Site Ownership】

1. ○○○○○○○○○○○-○○○○ 937m wide by 937m wide;

[Indication of Site Ownership]

1. Ownership: 52.06/937 of the ownership and site rights;

13. [Indication of one building]

○○○ ○○○ ○ 00- 00000 0 0000

Multi-family housing of reinforced concrete structure (framed) concrete roof 00 stories;

【Indication of the building on the exclusive ownership】

A multi-story of reinforced concrete structure No. 000 heading 63.34m

【Indication of Land Subject to Site Right】

1. ○○○○○○○○○○○-○○○○ 937m wide by 937m wide;

【Indication of Site Right】

1. Ownership: 52.06/937 of the ownership and site rights;

14. [Indication of one building]

○○○○○○ ○○ 00- 00 OOOO ○ ○○ ○○

Multi-family housing of 00 square meters on the ground of reinforced concrete structure (replacement);

【Indication of the building on the exclusive ownership】

○○○○○○-ho Lake 63.34 square meters of reinforced concrete structure

【Indication of Land Subject to Site Ownership】

1. ○○○○○○○○○○○-○○○○ 937m wide by 937m wide;

【Indication of Site Right】

1. Ownership: 52.06/937 of the ownership and site rights;

15. [Indication of one building]

○○○ ○○○○ ○○ ○○ ○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○○ ○ ○

Multi-family housing of reinforced concrete structure (framed) concrete roof 00 stories;

【Indication of the building on the exclusive ownership】

built of reinforced concrete structure ○○○○ heading 63.34m

【Indication of Land Subject to Site Ownership】

1. ○○○○○○○○○○○-○○○○ 937m wide by 937m wide;

【Indication of Site Right】

1. Ownership: 52.06/937 of the ownership and site rights;

16. [Indication of one building]

○○○○○○○○○○○ O-O 000 teas

Multi-family housing of reinforced concrete structure (framed) concrete roof 00 stories;

【Indication of the building on the exclusive ownership】

A multi-story of reinforced concrete structure No. 000 heading 63.34m

【Indication of Land Subject to Site Right】

1. ○○○○○○-O-O large 937 square meters;

【Indication of Site Right】

1. Ownership: 52.06/937 of the ownership and site rights;

17. [Indication of one building]

○○○○○○○○○○○○○○ O-O 000 O ○○ 1 Dong

Multi-family housing of reinforced concrete structure (framed) concrete roof 00 stories;

【Indication of the building on the exclusive ownership】

A multi-story of reinforced concrete structure No. 000 heading 63.34m

【Indication of Land Subject to Site Right】

1. ○○○○○○○○○○○-○○○○ 937m wide by 937m wide;

【Indication of Site Right】

1. Ownership: 52.06/937 of the ownership and site rights;

18. [Indication of one building]

○○○ ○○○○ ○○ ○○ ○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○○ ○ ○

Multi-family housing of reinforced concrete structure (framed) concrete roof 00 stories;

【Indication of the building on the exclusive ownership】

built of reinforced concrete structure ○○○○ heading 63.34m

【Indication of Land Subject to Site Right】

1. ○○○○○○○○○○○-○○○○ 937m wide by 937m wide;

【Indication of Site Right】

1. 52.06/937 of the ownership and site rights; and

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