[1] Method of public notification of acquisition, loss of ownership of construction machinery (registration under the Construction Machinery Management Act)

[2] Whether the general legal principles on real estate title trust apply to a title trust by the registration of construction machinery (affirmative)

[1] The former Construction Machinery Management Act (Act No. 4561, Jun. 11, 1993) provides that owners of construction machinery shall register the construction machinery (Article 3(1) of the former Construction Machinery Management Act, unlike automobiles, ships, aircraft, etc., there is no room for understanding that the registration of ownership of construction machinery is not required. However, in light of the provisions regarding the acquisition, loss, compulsory execution procedure, provisional seizure execution, etc. of mortgages on construction machinery, it is reasonable to deem that the construction machinery management law provides that the method of public announcement of the acquisition, loss, and transfer of ownership of the construction machinery is stipulated as the method of public announcement

[2] When concluding a facility leasing contract under the former Equipment Rental Business Act, a facility lessee intends to reserve the ownership of construction machinery to a facility leasing company, but the registration of the facility lessee in the construction machinery register with the facility lessee as the owner shall be deemed to have held the title trust of the relevant construction machinery by the facility leasing company. The provisions of Article 13-2 of the former Equipment Rental Business Act are to explicitly allow the title trust, and it does not stipulate that the general title trust doctrine does not apply to the case of title trust of construction machinery. Thus, in the construction machinery, unlike the internal relationship between the facility leasing company and the facility lessee under the general title trust doctrine, the facilities lessee who is the title trustee is the owner in an external relationship.

[1] [1] Article 3 (1) of the former Construction Machinery Management Act (amended by Act No. 5303, Mar. 7, 1997); Article 186 of the Civil Act / [2] Article 103 of the Civil Act / [title trust] Article 13-2 of the former Construction Machinery Management Act (repealed by Act No. 5374, Aug. 28, 1997; see Article 33 of the current Specialized Credit Finance Business Act)

Han light Credit Professional Co., Ltd. (Attorneys Lee Young-young et al., Counsel for the plaintiff-appellant)

Park Dong-type and 12 others (Attorney Clinical-soo et al., Counsel for the defendant-appellant)

1. All of the plaintiff's claims are dismissed.

2. Litigation costs shall be borne by the plaintiff.

Based on the executory exemplification of the recognition and recognition protocol prepared on August 14, 1998 with respect to the claim for wages, etc. by the Seoul District Court 98Gahap12087 against the non-party New Technology Industry Co., Ltd., the compulsory execution against construction machinery listed in the separate sheet on November 30, 1998 shall not be allowed.

1. Basic facts

The following facts do not conflict between the parties, or can be acknowledged by considering the whole purport of the pleading in relation to Gap evidence 1, Gap evidence 2, Gap evidence 3-1 through 6 and the testimony of the witness transferred to the witness, and there is no counter-proof.

A. The Defendant applied for a compulsory auction on the construction machinery listed in the separate sheet (hereinafter referred to as the “construction machinery of this case”) around November 1998, based on the executory exemplification of the recognition protocol prepared on August 14, 1998 with respect to the claim for wages, etc. against the non-party New Technology Industry Co., Ltd. (hereinafter referred to as the “non-party company”), the Seoul District Court rendered a compulsory auction order on November 30, 1998.

B. On March 16, 1994, the Plaintiff entered into a facility leasing agreement with the non-party company on the instant construction machinery, and entered into a modified agreement on April 29 of the same year (hereinafter referred to as the "facility leasing agreement of this case"), and imported the instant construction machinery overseas and delivered it to the non-party company.

C. Upon entering into the instant facility leasing agreement with the Nonparty Company, the Plaintiff agreed to register the instant construction machinery, which is an object of facility leasing, in the name of the Nonparty Company pursuant to Article 13-2 of the former Equipment Rental Business Act (Act No. 4450, Dec. 27, 1991), which was in force at the time, with respect to the construction machinery of this case, under the name of the Nonparty Company. The ownership of the construction machinery during the period of facility leasing is reserved to the Plaintiff. For the Plaintiff’s security of the claim under the instant facility leasing agreement, the Plaintiff agreed to the instant construction machinery

D. Accordingly, the non-party company registered the non-party company as the owner and used the construction machinery of this case. The reasons for termination under the contract of this case, such as the non-party company's delinquency in paying facility rental fees, occurred, the plaintiff company lawfully terminated the contract of this case.

E. The defendants are the creditors of wages and retirement allowances for the non-party company.

2. The assertion and judgment

A. According to Article 13-2 of the former Equipment Rental Business Act, which was enforced at the time of entering into the instant facility leasing contract, the Plaintiff’s registration of construction machinery cannot be deemed as a public announcement method for acquiring, altering, and removing compulsory execution against the instant construction machinery as the Plaintiff’s owner of the instant construction machinery, regardless of its registered name, as the Plaintiff owned the Plaintiff, and the Defendants asserted that the Plaintiff may register the construction machinery in the name of the lessee, notwithstanding the provisions of the Construction Machinery Management Act, in the event that the facility leasing company leases the construction machinery, the registration does not change the ownership of the construction machinery. Accordingly, the Plaintiff asserted that regardless of its registered name, the Plaintiff sought the exclusion of compulsory execution against the instant construction machinery as the name of the Nonparty company’s debt to the Nonparty company. As long as the Plaintiff and the Nonparty Company registered the instant construction machinery as the owner of the Nonparty Company, the Plaintiff is deemed as the ownership of the Nonparty Company in an external relationship,

B. The Automobile Management Act provides that the owner of construction machinery shall not operate his/her automobile, vessel, aircraft, etc. (Article 5 of the above Act) and the acquisition and loss of ownership of the automobile shall take effect only after the registration thereof (Article 6 of the above Act). The provisions of Articles 2 and 3 of the above Act provide that the owner shall register the establishment of ownership, mortgage, right of lease, alteration, or extinction of the construction machinery (Articles 5 and 8 of the above Act) with respect to a vessel above beyond a certain size of size (Article 5 of the above Act). The provisions of the former Construction Machinery Management Act provide that the acquisition, loss, and transfer of ownership of the construction machinery shall take effect upon the execution of the above construction machinery under title trust agreement (Article 4561 of the above Act). The provisions of the former Construction Machinery Management Act explicitly provide that the owner of the construction machinery shall be subject to provisional attachment and the provisions of the former Construction Machinery Management Act (Article 3(1) of the above Act) shall not apply to the acquisition, loss, or extinction of ownership of the construction machinery under title trust agreement.

3. Conclusion

Therefore, in relation to the defendants, the plaintiff's claim of this case based on the premise that the plaintiff is the owner of the construction machinery of this case is without merit, and it is dismissed. It is so decided as per Disposition.

Judge 5-2 (Presiding Judge)