Whether the possession of the tenant who leased the object of the lien from the lien holder without the consent of the lien holder is based on the "right to oppose the successful bidder" under the proviso of Article 647 (1) of the former Civil Procedure Act (negative)

Although the possession of the lien holder, which is the requirement for the establishment of a lien, is not directly or indirectly possessed, the lien holder does not have the right to dispose of the leased object without the debtor’s consent (see Article 324(2) of the Civil Act). Such lease by the lien holder is an infringement on the owner’s right to dispose of the object, and thus the owner cannot assert the effect of the lease. Therefore, the possession by the lien holder of the leased object without the consent of the lien holder cannot be deemed to be based on the "right to oppose the successful bidder" under the proviso of Article 647(1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 202).

Article 647(1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (see current Article 136(1) of the Civil Execution Act), Article 324(2) of the Civil Act

Appellant 1 et al.

Chuncheon District Court Order 2002Ra91 dated August 3, 2002

All reappeals are dismissed.

The grounds of reappeal are examined.

1. On the first ground for appeal

The court below held that the re-appellant could not be deemed to possess the second floor of the building of this case prior to the decision to commence the auction of this case. In light of the records, the judgment of the court below is just and acceptable, and there is no illegality as otherwise alleged in the grounds for re-appeal.

The grounds for reappeal to this point are rejected.

2. On the second ground for appeal

Although the possession of the lien holder, which is the requirement for the establishment of a lien, is not directly or indirectly owned, there is no disposal authority that can lease the object to another person unless the debtor gives his/her consent (see Article 324(2) of the Civil Act). Such lease by the lien holder is an infringement on the owner’s disposal authority, and thus, it cannot be asserted that the lease is effective to the owner. Therefore, the possession by the lien holder of the object of the lien from the lien holder without the consent of the owner is based on the "right to oppose the successful bidder" under the proviso of Article 647(1) of the former Civil Procedure Act (wholly amended by Act No. 6626, Jan. 26, 2002).

In addition, according to the records, as the lien holder of the building of this case who leases the second floor to the re-appellant, the order of delivery to deliver all of the building of this case to the successful bidder upon the application of the successful bidder is already confirmed. Thus, the right of retention cannot be maintained any more because the transfer of the building of this case from the re-appellant is impossible.

Therefore, in the same purport, even if the re-appellant leased the second floor from the non-identical industry, the court below's decision that the re-appellant cannot be deemed to have a title to oppose the successful bidder is just, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground for re-appeal.

The grounds for reappeal against this issue are rejected.

3. Therefore, all reappeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)