In a case where Gap asserted the right of retention on building Eul and sought the removal and prevention of disturbance due to the restoration of possession and the restored possession against Eul's illegal deprivation of possession, the case reversing the order of the court below that rejected the above application on the ground of Gap's loss of possession on the ground of Gap's loss of possession without examining and determining the existence of the right of retention, the fact of the deprivation of possession, the necessity for preservation, etc.

Article 204(1) of the Civil Act; Article 300 of the Civil Execution Act

Creditor (Law Firm Jeong, Attorneys Hewon-won et al., Counsel for the plaintiff-appellant)

Construction of Lighting Co., Ltd.

Daegu High Court Order 2010Ra65 dated December 16, 2010

The order of the court below is reversed, and the case is remanded to the Daegu High Court.

The grounds of reappeal are examined.

The court below rejected the motion of this case by citing the reasons of the first instance court's decision that the obligee cannot exercise the right to claim the removal of disturbance based on the right of possession on the ground of the past possession, in this case where it is evident in the record that the obligee asserted the right of retention as to the building of this case and sought the removal and prevention of disturbance based on the recovery of possession and restored possession against the obligor's unlawful deprivation of possession.

However, since Article 204(1) of the Civil Act provides that "the possessor who has been deprived of possession may claim the return of the article," the creditor cannot reject the application of this case on the ground of the loss of the creditor's possession in this case seeking the delivery of the building of this case. However, the court below rejected the application of this case only for the reasons indicated in its holding without further deliberation and determination on the existence of the right of retention claimed by the creditor, or the fact that the possessor has deprived of possession by the debtor, and the necessity of preservation, etc., by misunderstanding the creditor's right of retention as the possessor's claim for exclusion of the obstruction of possession. Thus, the court below erred in the misapprehension of law that affected the conclusion by failing to exhaust all necessary deliberation by misunderstanding the creditor's right of preservation, which is the cause of the creditor's claim and

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)