[1] The extent to which the contract of transfer for security is effective in a case where the entire swine raised in a money shed was established as an object of the contract of transfer for security

[2] The effect of the right of transfer for security on aggregate goods where the transferee acquired the same aggregate goods as the object of the contract for transfer for security from the person who established the security for transfer to a third party in good faith

[1] In a case where the entire swine raised in a money shed was established as an object of a contract for transfer of security, such contract for transfer of security corresponds to the so-called "contract for transfer of security for aggregate aggregate goods" which takes the change of a group of movables as an object of collateral security. In this case, if the mortgagee acquires possession of the aggregate goods existing at the time of the contract for transfer of security right by the method of possession revision, the right of transfer of security shall always be effective on the aggregate goods without losing the identity of the individual goods newly introduced after the conclusion of a separate contract for transfer of security or without indicating the change of possession.

[2] In a case where an aggregate which is the object of the security for transfer to a floating aggregate is transferred from a person who has established the security for transfer to a third party, the transferee takes over the aggregate at the time of the transfer. Therefore, the legal principle of the security for transfer to the floating aggregate applies to the transferee. Therefore, the effect of the security for transfer to the aggregate shall be infringed upon not only on the movable within the aggregate that existed at the time of the transfer but also on the movable that is newly purchased and brought in by the transferee from the movable at the time of the transfer. In this case, if the transferee satisfies the requirements for the bona fide acquisition at the time of the transfer, the transferee acquires a complete ownership without any burden on the acquired object, and thus, the effect of the security for transfer to the newly purchased object or the newly purchased movable property is not likely to be affected (According to this legal principle, even if the right for transfer to the floating aggregate is prevented by the public granting the security for the bona fide acquisition, so if the transferee satisfies the requirements for the bona fide acquisition, it can be recognized without impairing the safety of transaction.)

[1] Articles 189 and 372 of the Civil Act / [2] Articles 249 and 372 of the Civil Act

[1] Supreme Court Decision 2002Da72385 Decided March 14, 2003 (Gong2003Sang, 992) Decided December 26, 1990 (Gong1991, 601)

Iron Livestock Cooperatives (Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Lee Jong-deok (Law Firm Shin, Attorneys Yoon Young-hwan et al., Counsel for the plaintiff-appellant)

Seoul District Court Decision 2003Gahap544 delivered on August 14, 2003

March 9, 2004

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

The defendant shall deliver to the plaintiff the pigs stated in the attached list.

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

1. Basic facts

The following facts are not disputed between the parties, or are recognized in full view of Gap evidence Nos. 1, 2, Eul evidence Nos. 4-1 through 4, Eul evidence Nos. 5, Eul evidence Nos. 6-1, 2, Eul evidence Nos. 8-1 through 5, Eul evidence Nos. 9-1 through 4, Eul’s evidence Nos. 14 and 16, Eul’s witness Nos. 14 and 16, and Eul’s witness Nos. 14 and 16, and the purport of the whole pleadings, and there is no reflective evidence.

A. In order to secure KRW 300,000,000, the Plaintiff supplied stuffed feed to the stuffed rice farm located in Gangwon-gun, Gangwon-gun, Dongwon-gun, Dongwon-gun, 517-2, where pigs were raised, to secure the total amount of KRW 300,00,000, which was already supplied between the stuffed steel exchange and the total amount of the feed to be supplied in the future, the Plaintiff entered into a contract for transfer of the ownership of pigs listed in the separate sheet, which was 300,000,000 in the total amount of pigs located in the stuffed farm in which stuffd steel was raised, and transferred the ownership of pigs to the Plaintiff by means of the occupancy revision, while continuing possession and management of pigs, and at all times, disposed of pigs with the Plaintiff’s consent, and made a contract for transfer (hereinafter “transfer contract”).

B. After that, the Plaintiff sold and disposed of pigs without the Plaintiff’s consent, and on April 16, 1998, upon receiving a ruling of provisional disposition against disposal of corporeal movables under the Seoul District Court’s 98Kahap568, the Plaintiff completed its execution on April 21, 1998.

C. However, on September 16, 200, 2000 won loaned KRW 98,000,000 from a tobacco farm, and then, on September 16, 200, 200, 300 ambling pigs were raised at KRW 1,200, 1,500, 3,000 for total 350,000 won, and ambling pigs continued by delivering it by means of possession amendment.

D. Around September 200, the financial situation of the said livestock industry aggravated, and on December 1, 200, the Plaintiff agreed to sell and purchase pigs within the original livestock farm to the leson who was engaged in the said livestock industry, and the Plaintiff paid KRW 3,000 to the leson the total sum of KRW 322, 667, 1,486, 11, 11, 353, 300, 300, 500, 50,0000, and 50,0000,0000,000,000,000 from the borrower’s debt, to continue raising and managing the said livestock farm through the loan of KRW 50,00,00,00,000.

E. The grandchildren sold part of the said pigs to the Defendant on December 27, 200, while raising the said pigs at the source farm of stuffing iron through leinology. On December 27, 200, the Defendant sold the total 200 Madle-in 200 and 570 Madle-in 91,50,000 won to the Defendant. In addition, on the same day, the Defendant raised the said pigs by leasing KRW 50,000,000 from leinology on behalf of the grandchildren to KRW 50,000.

F. On January 8, 2001, the Defendant purchased at 115,000,000 pigs 840 raised at the original farm by entrusting a leson with the purchase of the said pigs at KRW 115,00,000. The Defendant thereafter disposed of part of the said pigs and raised pigs at least 3,000 pigs at the original farm as of the date of new purchase of pigs.

G. On January 31, 2001, the Plaintiff, upon receiving a provisional injunction against the disposal of corporeal movables from the government branch of the Seoul District Court (2000Kahap1078) and intended to execute it on January 16, 2001, when the possession of pigs was already transferred to the Defendant and became impossible to execute it. However, on January 31, 2001, the Plaintiff again received a provisional injunction against the transfer of corporeal movables and disposal of corporeal movables from the Defendant as the support against the Defendant as to the pigs of the original farm on January 31, 2001.

2. The parties' assertion

A. The Plaintiff asserts that the Defendant, the possessor of the said pigs, has the duty to deliver the said pigs to the Plaintiff, since the ownership of pigs listed in the attached Table, in the original farm, was attributed to the Plaintiff in accordance with the instant transfer security agreement entered into with the said stuff.

B. As to this, the Defendant asserted that the Plaintiff’s claim is unfair since, first, the Defendant’s purchase of 770 pigs remaining in the original farm at the time of the Plaintiff’s seat, and the Defendant’s purchase of pigs existing in the original farm at 770 son’s seat or at 840 son’s seat purchase from the Defendant, and the Defendant’s new purchase of pigs at 840 son’s seat or at other places, and thus, the Plaintiff’s claim is unreasonable. Even if the identity of son is recognized, the validity of the instant transfer contract is limited to 770 son’s purchase from the son’s seat or 840 son’s purchase from the son’s seat and 1,170 sons including 40 son, which the Defendant again sold to the Defendant, and thus, the Plaintiff’s claim as to this exceeding part is justified.

3. Determination

A. Determination on the assertion of bona fide acquisition

In order for the Defendant to acquire the said pigs in good faith, it is necessary to acquire them in good faith without fault, and it is considered whether the Defendant is a good faith or without fault.

With respect to the Defendant’s purchase of pigs from her grandchildren, there is no evidence to believe that part of testimony by witnesses of the first instance trial, and her testimony is not different. Rather, according to the evidence adopted earlier, her lender entered into a contract on the ground of her husband’s agent without finding the original farm even at the time of entering into a sales contract with her fingers. On June 200, 200, her son, who was in charge of her farm overall duty, conducted a contract on the ground of her mother’s agent without finding the original farm as the her lender. On the other hand, her her son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s her son’s son’s son’s son’s her her son’s son’s her son’s her.

According to the above facts, the point at which the Defendant purchased pigs from her grandchildren was widely known that the financial standing of stuffed and the fact that pigs in the stack farm had already been provided as a security for transfer to the Plaintiff and had been executed a provisional disposition as between the persons engaged in the cabbs at the time as a result of the default of stuffing, and that the cabbs in the stack farm had already been executed as a result of the provisional disposition. In full view of these various circumstances, the Defendant was aware that the cabbs, while leasing the cabbs in the stack, did not directly confirm her cabbs. In full view of these circumstances, the Defendant could not be deemed to have been negligent in purchasing her pigs in purchasing her cabbs in the stack farm, if her cabbs were provided as a security for transfer to the Plaintiff, and further, it could not be deemed that there was no negligence on the part of the Plaintiff in purchasing her cabbs.

Therefore, the defendant's above assertion is without merit.

B. Determination on the assertion on the validity scope of the instant transfer security

According to the facts found in the above facts, the plaintiff and Park Jae-hwan made all pigs raised within the original farm as the object of the contract of this case. Such security transfer contract is a so-called "security transfer contract for the aggregate aggregate goods" which takes the object of the security right as the object of the security right. In this case, if the mortgagee acquires possession of the aggregate goods existing at the time of the contract of security right by the method of possession modification, the security right shall not be valid as a single aggregate goods at all times without losing identity, even if the mortgagee concludes a separate security transfer contract or fails to indicate the change of possession.

In particular, in the instant case, if the pigs raised in large quantity from a money shed as in the instant case are used as the object of security for collection, it is naturally anticipated that the pigs will change due to such factors as propagation, death, sale, purchase, etc., and accordingly, the said pigs may dispose of the subject matter of security for transfer within the extent normally permitted and may purchase new pigs (in the instant security agreement, it is allowed to sell pigs, the subject matter of security for transfer, under the consent of the Plaintiff, which is the subject matter of security). In this case, even if a separate security contract for the newly introduced pigs is not made or an indication of the change in possession is not made, the effect of the security for transfer has been automatically infringed.

In addition, in a case where aggregate goods which are the object of the security for transfer to a third party are transferred from the person who has established the security for transfer to a floating aggregate goods having the above characteristics, the transferee takes over the aggregate goods with the burden of the security for transfer, so the legal principle of the security for transfer to the floating aggregate goods mentioned above applies to the transferee. Therefore, not only the movable within the aggregate goods that existed at the time the transferee takes over but also the movable at the time of the transfer but also the movable which is newly purchased and brought in by the transferee from the movable at the time of the transfer, shall have the effect of the security for transfer. In this case, if the transferee satisfies the requirements for the bona fide acquisition at the time of the transfer, the transferee acquires a complete ownership without any burden on the acquired object or the newly purchased movable property, so it is not likely to have the effect of the security for transfer to a new movable property (According to these legal principles, even if the transfer to a public right for the floating aggregate goods is prevented, so the transferee who is a third party can acquire a complete ownership if it satisfies the requirements for bona fide acquisition, thereby complying with the concept of the right for transfer.

With respect to this case, pigs within the original farm as a group of collective goods subject to the security agreement of this case were transferred in sequence from the ice return, the person who has established the security of this case, to the Chuncheon, and again from the defendant to the defendant. Even if there was a change in the quantity of pigs remaining within the original farm at each time of transfer, the effect of the security right of this case lies on the collection of pigs, not each of the constituent goods of the collective goods, and therefore, according to the legal principles of the security right of transfer as to the collective goods above, the effect of the security right of this case is to the assignee at each time of transfer, and the defendant would have the effect of the security right of this case to purchase all pigs remaining within the original farm at each time of transfer, and accordingly, the effect of the right of transfer of pigs in this case is to the effect of the right of transfer of pigs in this case to the transferee at each time of transfer.

Therefore, in this case, where the defendant's bona fide acquisition of pigs purchased from her grandchildren is not recognized, the defendant's assertion that the effect of the transfer of the security of this case is effective only to the pigs purchased from her grandchildren or to the pigs located within her farm at the time of purchase, and that the effect of the transfer of the security of this case does not extend to the plaintiff's born pigs or the pigs that were newly purchased and brought into Korea by the defendant is contrary to the above legal principles and thus,

4. Conclusion

Therefore, the defendant is obligated to deliver the above pigs to the plaintiff as the owner of the pigs listed in the separate sheet. Thus, the plaintiff's claim of this case seeking its implementation is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is so decided as per Disposition.

Judges Lee Sang-hoon (Presiding Judge)