In a case where: (a) an automobile delivered to “A” was delivered to “B” in sequence along with the documents necessary for the registration of transfer of ownership; (b) was finally delivered to the needy persons; and (c) was possessed for the purpose of securing a loan to the needy persons; and (c) A, the nominal owner of the ownership of the automobile, sought a delivery of the automobile against “B”, the case

In a case where a motor vehicle delivered to Eul was delivered to Eul along with the documents necessary for the registration of transfer of ownership, and was finally delivered to Byung for the purpose of securing loans to the needy persons, and where Byung, the nominal owner of the registration of ownership of the motor vehicle, sought the delivery of the motor vehicle against Byung, the case holding that Byung cannot occupy the said motor vehicle based on the right of retention on the ground that, since the motor vehicle can only be the object of the mortgage and cannot be the object of the pledge, and the agreement between the needy persons with the intent to secure the loan obligation as a result of Byung's possession is null and void, Byung cannot occupy the said motor vehicle on the ground of the pledge, and since Byung's loan claim against the needy persons in name and the right to request the delivery of the motor vehicle was generated from other legal relations, such as the loan agreement and the agreement to provide security for the above loan claim

Article 7 of the former Automobile Mortgage Act (repealed by Article 2 of the Addenda to the Act on Mortgage on Motor Vehicles and Other Specific Movables, Act No. 9525 of March 25, 2009), Article 9 of the Act on Mortgage on Motor Vehicles and Other Specific Movables, Article 320(1) of the Civil Act

Plaintiff

Defendant (Law Firm Daegu General Law Office, Attorney Lee Jae-dong, Counsel for defendant-appellant)

Daegu District Court Decision 2012Kadan9796 Decided September 21, 2012

June 4, 2013

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall deliver the vehicle indicated in the attached Form to the plaintiff.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Determination as to the cause of claim

The Plaintiff completed the registration of ownership of the instant motor vehicle as indicated in the Attachment (hereinafter “instant motor vehicle”), and the fact that the Defendant currently occupies the instant motor vehicle does not conflict between the parties. Therefore, the Defendant is obligated to deliver the instant motor vehicle to the Plaintiff, barring any special circumstance.

2. Judgment on the defendant's defense

A. The defendant's assertion

The Defendant, while lending KRW 5 million to a person in bad name, was provided as security for the instant automobile, has a legitimate right to possess the instant automobile on the basis of the pledge or lien.

B. Determination

1) Facts of recognition

A) On April 20, 2009, when the Plaintiff delivered the instant automobile to the Nonparty, the Plaintiff issued documents, such as the letter of transfer of the vehicle, the delegation letter of automobile transfer, the automobile mortgage contract, the power of attorney, the certificate of automobile transfer, the vehicle transfer certificate, the vehicle transfer certificate, the vehicle transfer certificate, and the operating permit, which were not indicated by the other party, along with a certificate of personal seal impression and the resident registration certificate, and five million won was remitted to the Plaintiff’

B) Since then, the instant motor vehicle is delivered in sequence with each of the above documents to the bearers, and the Defendant finally occupies the instant motor vehicle for the purpose of securing loans.

[Reasons for Recognition] A, A’s evidence 2, B’s evidence 1 through 10 (Evidence Nos. 1, 2, 3, 6, and 10) (Evidence Nos. 1, 2, 3, and 6 through 10) do not conflict between the parties as to the fact that the stamp image affixed on the Plaintiff’s name is based on the Plaintiff’s seal, and thus, the authenticity of the entire document is presumed to have been established. The Plaintiff has issued the Plaintiff’s seal impression, certificate of personal seal impression, etc. as to the Plaintiff’s business as the representative director at the time of delivering the instant vehicle to the Nonparty, and issued the Plaintiff with the Nonparty’s seal impression and certificate of personal seal impression, etc. as to the Plaintiff’s business as the Plaintiff. However, the Nonparty asserted that the said document was forged by using the above document, but it is not sufficient to acknowledge it by itself

2) Determination as to the defendant's right to possess

A) Determination on the assertion of pledge right

An automobile can only be the object of mortgage under Article 7 of the former Automobile Mortgage Act (amended by Act No. 9525 of March 25, 2009) and Article 9 of the Act on Mortgage on Specific Movables including Automobiles, and cannot be the object of a pledge, which is a real right to secure possession for the purpose of securing the security of claims. These provisions are to be disclosed by the registration of an automobile, and the acquisition, loss, and transfer of the right to the automobile takes effect only after the registration of the automobile. As such, the mortgage is more appropriate than the pledge which takes possession as the method of public announcement, rather than the pledge which takes possession as the method of public announcement, and it is to prevent social and economic losses from becoming the president of the means of living by establishing a pledge. Therefore, the agreement between the defendant and the person without name who is the creditor of the automobile in this case to secure the debt of the automobile in this case is null and void, and as long as the defendant did not complete the transfer of ownership on the automobile in this case, the right of transfer on the automobile in this case has not been established.

B) Determination as to the assertion of lien

A person who possesses an article owned by another person has the right to retain the article until the claim arising from the article is repaid (Article 320(1) of the Civil Act). Here, “claim arising from the article” includes not only cases where a claim is arising from the article itself, but also cases where a claim is arising from the same legal relationship or fact as the right to claim the return of the article, unless it is contrary to the principle of equity, which is the original purpose of the lien system, and which is the original purpose of the lien system (see, e.g., Supreme Court Decision 2005Da16942, Sept. 7, 2007). However, it is obvious that a loan claim against the Defendant’s person in distress is not a case where the vehicle itself occurs from the vehicle itself. Moreover, it constitutes a case where the Defendant’s loan claim and the right to claim the delivery of a motor vehicle from a person in distressed with name constitutes another legal relationship

3. Conclusion

If so, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] Indication of Motor Vehicle: omitted

Judges Kim Hyun-hwan (Presiding Justice)