Plaintiff (Attorney Nam Jin-jin et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Sung-sung, Counsel for defendant-appellant)

March 20, 2008

Daegu District Court Decision 2005Gahap17314 Decided September 13, 2006

1. The defendant's appeal is dismissed.

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

1. Purport of claim

It is confirmed that there is no lien that the defendant's claim against the non-party 1 as the secured claim against the real estate listed in the attached list does not exist.

2. Purport of appeal

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

1. Basic facts

The following facts may be acknowledged if there is no dispute between the parties, or if they gather the purport of the whole pleadings in each entry of Gap evidence Nos. 1 through 6, 8, and 10, and there is no counter-proof otherwise.

A. On December 20, 2001, the registration of ownership transfer was completed on the real estate listed in the separate sheet (hereinafter “instant real estate”) owned by the Dong Daegu Credit Union (hereinafter “Dong Daegu Credit Union”) under the name of Nonparty 1 (hereinafter “instant registration of ownership transfer”).

B. On December 20, 2001, the Plaintiff completed the registration of creation of a neighboring mortgage with the maximum debt amount of KRW 378,000,000,000 for the instant real estate as the interest rate of KRW 7.2% per annum and the due date of repayment on December 20, 2004 for the purpose of securing the instant loan while lending to Nonparty 1 as the interest rate of KRW 7.2% per annum.

C. On December 20, 2001, Nonparty 1 entered into a lease contract with the Defendant with a deposit money of KRW 80 million (hereinafter “instant lease contract”) on the “80 square meters of the instant real estate,” among the instant real estate, and obtained a fixed date.

D. Around October 2002, the Defendant performed remodeling and gardening construction of the instant real estate (hereinafter “instant construction”).

E. As Nonparty 1 did not pay interest on the instant loan, on October 8, 2004, the Plaintiff filed an application for a voluntary auction on the instant real estate on October 8, 2004, and accordingly, on December 12, 200, the voluntary auction procedure on the instant real estate ( Daegu District Court No. 2004ta70185, hereinafter referred to as “instant auction procedure”).

F. In the instant auction procedure on December 3, 2004, the Defendant reported the right of retention by asserting that “A new person, as a lessee, has the right to attract the instant real estate until he/she receives reimbursement of KRW 104,472,800 equivalent to the construction cost of the instant construction project from Nonparty 1.”

G. Meanwhile, around December 2004, Nonparty 2, who was a pilot of the Defendant, claimed that “self-appellant leased the entire part of the first floor and the underground space of the instant housing from Nonparty 1 to December 18, 2001, in the instant auction procedure, KRW 50 million.”

2. Determination on this safety defense

The defendant asserts as this safety defense that "the existence of the right of retention exercised by the defendant is a legal issue that must be determined between the owner or the successful bidder who was avoided the request for extradition by the exercise of the right of retention and even if there is room for the decrease of the plaintiff's dividend amount, which is the right of collateral security, due to the low price of real estate for auction purposes, it cannot be deemed as a de facto problem and an existing danger or apprehension, and therefore, the plaintiff merely in the position of a third party as to the exercise of the right of retention does not have any benefit of confirmation and is not a valid and appropriate method of dispute

On the other hand, the lien holder may refuse to deliver real estate for auction purposes until his claim is repaid, so the bidder of the real estate auction procedure will make a bid by taking into account the fact that the object of auction can not be easily delivered from the lien holder after the successful bid. Accordingly, since the real estate for auction purposes is awarded at a lower price and the risk of a decrease in the amount of the plaintiff's dividends is at a low price, the plaintiff's legal status as a mortgagee is unstable. This apprehension cannot be viewed as merely a mere and economic disadvantage, and therefore the plaintiff has a legal interest in claiming removal of such apprehension. Moreover, seeking confirmation of the non-existence of a lien against the defendant is an effective and appropriate method to eliminate such apprehension, and therefore, the plaintiff's claim for this case has a benefit of confirmation. Therefore, the defendant's main defense is without merit.

3. Judgment on the merits

A. The parties' assertion

(1) The Plaintiff asserts that “the Defendant, as the actual owner of the instant real estate, purchased the instant real estate under the name of Nonparty 1 and completed the registration of ownership transfer, concluded the instant lease agreement in collusion with Nonparty 1, and is merely presumed to be a lessee in collusion with Nonparty 1, and is not a genuine lessee, and thus, cannot exercise the right to claim reimbursement for beneficial costs and the right to retention based thereon against Nonparty 1.”

(2) The defendant asserts as follows.

(A) First, in order to operate a restaurant, Nonparty 1 purchased the instant real estate from the East Daegu New University, and the Defendant genuinely leased the instant real estate from Nonparty 1 and carried out the instant construction. Accordingly, as the value of the instant real estate has increased, the Plaintiff has the right to attract the instant real estate from Nonparty 1, the lessor, until repayment of KRW 104,472,80, the beneficial cost equivalent to the construction cost.

(B) Next, even if the ownership transfer registration of this case was registered under title trust as alleged by the Plaintiff, and the title trust between the Defendant and Nonparty 1 was null and void as it constitutes so-called “title trust,” and thus, the real estate of this case belongs to Nonparty 1’s ownership. As such, the Defendant occupies Nonparty 1’s goods and also has the right to claim a return of unjust enrichment equivalent to the purchase price of the real estate of this case against Nonparty 1. Accordingly, the Defendant has the right to attract the real estate of this case until the return of unjust enrichment

(C) Lastly, the Defendant, as the possessor of the instant real estate, may claim reimbursement of beneficial expenses against the reinstated person pursuant to Article 203(2) of the Civil Code, there is a lien based thereon.

B. Determination as to the existence of a lien based on the lessee’s right to claim reimbursement of beneficial costs

(1) In light of the following facts, the evidence No. 15-8, 9, 3, 4, 4, 8, 9, 11, 12, 14, 16, 17, 18, 20 (including paper numbers) and the evidence No. 15-9, 14, 15, and 24, the testimony of Non-Party 3 of the first instance trial witness, Non-Party 1, Non-Party 4 of the first instance trial witness, Non-Party 1, and Non-Party 4 of the first instance trial witness, and the whole purport of the pleadings as a result of on-site inspection by the court of the first instance, the following facts can be acknowledged.

① The Defendant and his husband Nonparty 5 acquired the ownership of the instant real estate on March 15, 1975. From that time, the instant real estate was awarded in order to Nonparty 6, who is the Defendant’s birth, on May 9, 1997, to the Donggugugu Newcom, on May 21, 1999, and on December 20, 2001, the instant real estate had been resided in the instant real estate continuously for about 30 years until now under the circumstances where the ownership transfer registration was completed in the name of Nonparty 1.

② The Defendant couple is a major shareholder of Nonparty 7 corporation operating ○○ hotel. Nonparty 1, while operating a restaurant at ○○ hotel, closed the business around June 2002, and thereafter, Nonparty 7 was registered as a director of Nonparty 7 corporation while working at ○○ hotel.

③ Nonparty 1 was residing in the house leased at KRW 20,00,000 as at the time of the registration of ownership transfer, and the real estate of this case is a high-class detached house. Nonparty 1 did not have actually paid out of the real estate purchase fund of this case, in addition to KRW 270,00,000,000 of the loan of this case loaned by the Plaintiff, and at that time, Nonparty 1 did not have the ability to pay the interest of the loan of this case.

④ On December 19, 2001, the day before receiving the instant loan from the Plaintiff, Nonparty 1 prepared a written confirmation of the lease agreement that the Plaintiff’s employee visited Nonparty 8 to investigate the lease relationship. Nonparty 1 received a loan of KRW 40,000,000 from the Gannam Community Treasury on February 6, 2003. At that time, Nonparty 5 confirmed that Nonparty 1 had resided without compensation in the lease agreement.

⑤ Although a lease contract has been separately prepared against the Defendant and Nonparty 2, resident registration was entered along with resident registration. At the time of the first instance court’s on-site inspection, the part of the instant real estate possessed by the Defendant and Nonparty 2 was not separated from that of the instant real estate at the time of the first instance court’s on-site inspection, and Nonparty 2 did not seem to have been able to actually reside. Moreover, Nonparty 2’s lease agreement states that the date of preparation is “30 square meters of house”; the leased object is “50 million won” as “30 square meters of house”; and there is no fixed date.

(2) In light of the following circumstances, the Defendant: (a) purchased the instant real estate under the name of Nonparty 1 and Nonparty 1’s residence therein; (b) purchased the instant real estate under the name of Nonparty 1 and Nonparty 2, and (c) purchased the instant real estate under the name of Nonparty 1 and Nonparty 2 for the purpose of purchasing the instant real estate under the name of Nonparty 1; and (d) purchased the instant real estate under the name of Nonparty 1 and Nonparty 2 for the purpose of purchasing the instant real estate under the name of Nonparty 1; (b) purchased the instant real estate under the name of Nonparty 1 and Nonparty 2 for the purpose of purchasing the instant real estate under the name of Nonparty 1; and (c) purchased the instant real estate under the name of Nonparty 1 and Nonparty 2, who purchased the instant real estate under the name of Nonparty 1 and Nonparty 2; and (d) concluded the instant real estate under the name of Nonparty 1 and Nonparty 2, who purchased the instant real estate under the name of Nonparty 1 and Nonparty 2, who claimed that it would be more than KRW 8000 million.

(3) Therefore, since the instant lease agreement is null and void as a false declaration of agreement, the Defendant cannot exercise the lessee’s right to claim reimbursement of beneficial costs and the right of retention based on such right, as it is not a genuine lessee

B. Whether a lien exists on the right to claim restitution of unjust enrichment equivalent to the purchase price

If the Defendant entered into a sales contract on the instant real estate under the name of Nonparty 1 in the same case, it constitutes a so-called contract title trust, and on the other hand, there is no evidence to prove that the same was known that the same was a title trust agreement, which is the seller, pursuant to the proviso of Article 4(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, the instant real estate belongs to Nonparty 1’s ownership, and the Defendant has the right to claim a return of unjust enrichment equivalent to the purchase price of the instant real estate against Nonparty 1. In addition, if the obligation to deliver the instant real estate was enforced first to the Defendant only between Nonparty 1 and Nonparty 1, it would result in a violation of the equity and good faith principle, thereby allowing the Defendant to refuse to deliver the instant real estate from Nonparty 1 until the return of unjust enrichment. However, the right to claim a return of unjust enrichment against Nonparty 1 cannot be deemed as a “claim arising on the instant real property” under Article 320(1) of the Civil Act, which is a right of retention.

(c)the existence of a lien based on the possessor's right to claim reimbursement of beneficial non-performance;

Meanwhile, according to Article 320(1) of the Civil Act, a lien is established when a claim arising with respect to the subject matter is due, and thus, it cannot be exercised a lien based on a claim that has not yet arrived at the due date (see Supreme Court Decision 2005Da41740, Sept. 21, 2007). Moreover, the possessor’s right to claim reimbursement of expenses against the reinstated person pursuant to Article 203(1) and (2) of the Civil Act arises when the possessor receives a request for delivery of possession from the reinstated person or delivers possession to the reinstated person, and at the same time the due date. Even if the title trust agreement between the defendant and the non-party 1 falls under a contract title trust, and the defendant, as the possessor, has owned the real estate in this case, and even if the defendant performed repair and remodeling construction works on the subject matter, the Defendant’s right to claim reimbursement of expenses against the reinstated person, such as non-party 1, etc., cannot be seen as having not yet reached the due date.

However, in the event that the Defendant received a request for the delivery of the instant real estate from the reinstated person, such as Nonparty 1, etc., whether it is possible to exercise the right of retention based on the possessor’s right to demand reimbursement of expenses against the reinstated person, such as Nonparty 1, etc.

D. Sub-committee

Therefore, there is no lien for the defendant's claim against the non-party 1 as the secured claim against the real estate of this case. Since the defendant asserted a lien on the real estate of this case, the plaintiff has a benefit to seek confirmation of non-existence.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and it is dismissed, and it is so decided as per Disposition.

[Attachment Omission of List of Real Estate]

Judges Lee Jae-young (Presiding Judge)