Plaintiff (Attorney Ma-ho et al., Counsel for plaintiff-appellant)

Defendant

January 20, 2005

Seoul Western District Court Decision 2003Da37689 Delivered on May 20, 2004

1. Of the judgment of the first instance, the part against the plaintiff falling under the next order to deliver shall be revoked.

The defendant shall receive KRW 3,542,263 from the non-party 2 (resident registration number: omitted) and simultaneously deliver the real estate stated in the attached list to the plaintiff.

2. The plaintiff's remaining appeal is dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff, while the remainder shall be borne by the Defendant, respectively, by the first and second instances.

4. The part ordering a delivery under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall issue an order to the plaintiff for real estate stated in the attached list, and shall pay the amount calculated by the ratio of KRW 7.50,000 per month from May 20, 2003 to the completion date of the order to clarify the above real estate.

1. Part of the request for extradition;

A. Determination on the cause of the claim

The real estate listed in the attached list (hereinafter referred to as “instant house”) is owned by the Plaintiff, and the fact that the Defendant occupies it is not a dispute between the parties.

Thus, the defendant has a duty to deliver the house of this case to the plaintiff unless there are special circumstances.

B. Judgment on the defendant's defense

(1) The defendant's assertion

The defendant asserts that the housing of this case is one of the seven multi-household buildings in which new cities and door doors had been supplied with construction by Nonparty 2, and that the construction cost that was not paid by Nonparty 2 still remains. Thus, the defendant has the right to attract the housing of this case until it is paid.

(2) Facts of recognition

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in the descriptions of Gap evidence of 1, 2, 4, Eul evidence of 1, Eul evidence of 3-2, Eul evidence of 4, Eul evidence of 7-2, Eul evidence of 9 and 13:

(A) On February 1, 2002, Nonparty 1 representing the landowner on the ground of Eunpyeong-gu, Seoul (each lot number omitted) contracted to Nonparty 2 for the reconstruction of 7 multi-household houses (total 56 households) on each of the above sites (hereinafter “building construction”).

(B) Around July 2002, the Defendant agreed to receive 50% of the construction cost in cash and 50% of the completed housing from Nonparty 2. The Defendant agreed to receive 50% of the construction cost.

(C) Around May 2003, the Defendant completed the instant construction subcontracted by Nonparty 2. At the time, the construction price that was paid by Nonparty 2 was KRW 1.1 million, and the Defendant and Nonparty 2 agreed on June 19, 2003 to accord and pay the remainder of the construction price to the Defendant, which was newly constructed on the ground (number omitted) of Eunpyeong-gu, Seoul at the same time (number omitted), on June 19, 2003, 301 and 302, but Nonparty 2 did not implement the said payment and payment agreement.

(D) On April 25, 2003, the Plaintiff completed the registration of initial ownership of the instant housing, one of the instant housing newly constructed on the site of the said reconstruction construction project, in co-ownership with Nonparty 3, etc., and on December 3, 2003, the Plaintiff was transferred all of the shares of other co-owners and owned by himself.

(E) On the other hand, the defendant could not receive KRW 157,387,00 among the total construction price of KRW 267,387,00 from Nonparty 2, since May 2003, he began to occupy the house of this case. On May 13, 2003, the non-party 1, who is the president of the reconstruction association, notified that he shall exercise a lien on the house of seven households including the house of this case, based on the claim for construction cost. The defendant shall lose possession of the remaining house as of the closing date of pleadings in the trial, and only occupies the house of this case. The construction price of this case shall be KRW 3,542,263.

(3) Determination

(A) Whether the preservation claim has been created

If a contractor who has built a new building occupies the building and has a claim for the construction cost arising from the building, the contractor has the right to retain the building until he has been paid the claim (see Supreme Court Decision 95Da16219 delivered on September 15, 195). According to the above facts, the defendant still remains a claim for the construction cost which has not been paid for the subcontracted construction work from the non-party 2, and the above claim for the construction cost against the non-party 2 falls under the claim for the housing of this case. The above claim for the construction cost against the non-party 2 falls under the claim for the housing of this case, and even if it is an object owned by a third party, which is not the debtor of the secured claim, the defendant may exercise the right to retention for the housing of this case with the claim for the construction cost against the non-party 2

As to this, even if the Defendant did not receive the construction cost from Nonparty 2, the Defendant asserts that the remainder of the construction cost, excluding the construction cost that was already paid in cash, would be paid in kind in the form of a loan (dong 4) 301 and 302 newly constructed on the ground of Eunpyeong-gu Seoul, Eunpyeong-gu 1, Seoul, and thus, the Defendant’s claim for the construction cost was changed into the claim for delivery of each of the above real estate, which is a specific object, or the claim for ownership transfer registration. Accordingly, the Defendant cannot claim any right, including the lien

However, as seen earlier, Nonparty 2 agreed on June 19, 203 to pay in kind to the Defendant the remainder of the construction cost on the ground (number omitted) of Eunpyeong-gu Seoul, Eunpyeong-gu (dong 4) and 301 and 302, but the above payment in kind agreement was not implemented. In full view of the purport of the entire pleadings in the statement of evidence No. 3-2, the above agreement was concluded on the premise that Nonparty 2 would complete the claim for the construction cost against the Defendant until July 30, 2003. However, it is reasonable to view that Nonparty 2 did not pay the construction cost within the period stipulated in the above agreement, even if there was the above payment in kind between the Defendant and Nonparty 2, as long as the agreement was not actually implemented, the Defendant’s claim for the construction cost against Nonparty 2 was extinguished due to the above agreement or the Plaintiff’s claim for the payment in kind cannot be seen as having been extinguished due to the lapse of the right to claim the payment in kind.

(B) Whether illegal occupancy is illegal

The plaintiff had already been occupied and managed by the plaintiff and the non-party 1 since the completion of April 1, 2003, but the defendant began to occupy the house of this case without permission from the plaintiff and the non-party 1 while arbitrarily replacing the lock locking device of this case 3 times from the police officer of April 2003 to the middle of May of the same year without permission from the plaintiff and the non-party 1. Therefore, the defendant's possession of the house of this case constitutes illegal possession and thus, the defendant cannot be a legitimate lien holder for the house of this case.

In light of the plaintiff's above argument, Gap evidence 5, Gap evidence 9-2, Gap evidence 10, 11, and 12, and non-party 4's testimony of non-party 1 and non-party 4's witness of the court of first instance cannot be trusted in light of Eul evidence 14 and non-party 5 and witness of the court of first instance and non-party 6's testimony of non-party 6 of the court of first instance, and there is no other evidence to acknowledge it. Rather, in full view of the statement of Eul evidence 14 and the testimony of non-party 5 and non-party 6 of the court of first instance on May 11, 203, the defendant received a request for defect repair of other houses including the house of this case from the non-party 5, the head of the field department of the reconstruction construction of this case, and for this purpose, it cannot be acknowledged that the defendant occupied the house of this case and other houses without permission.

(C) Scope of exercise of lien

According to the above facts, the defendant has the right to attract the house of this case with the claim for construction cost against the non-party 2 as the secured claim.

However, in a lawsuit claiming delivery of a thing, where the defendant's right of retention is quoted, the court shall order to deliver the thing in return for the repayment and redemption of the claim arising with respect to the thing (see Supreme Court Decision 69Da1592 delivered on November 25, 1969). Thus, the procedure to determine the amount of the secured claim secured from the house of this case is required. The defendant claims the total amount of the remaining construction cost not paid by the non-party 2 as the secured claim. However, although the right of retention is acknowledged under the Civil Act based on the contingency that the creditor holding a claim arising from a certain thing or securities occupies such thing or securities, the owner of such thing or securities does not necessarily demand that the third party be the debtor in relation to such claim. Thus, if the owner of the thing is a third party, the court does not necessarily require that the third party be the debtor in relation to the article, and even if the creditor exercises the right of retention based on legitimate title, the defendant's right of retention or possession of the article of this case is established as an independent bond of this case.

(D) Sub-committee

Thus, the defendant is obligated to deliver the house of this case to the plaintiff at the same time with the payment of the construction cost of KRW 3,542,263 from the non-party 2.

2. Part demanding the amount; and

A. Determination on the claim for damages

First, the Plaintiff asserts that, as the Defendant illegally occupied the instant house without any title, the Plaintiff, the owner of the instant house, suffered damages equivalent to the monthly rent. Thus, the Defendant is obligated to pay to the Plaintiff the amount equivalent to KRW 7.50,000 per month from May 20, 2003, which began to occupy the instant house as compensation for damages to the Plaintiff. However, as seen earlier, the Defendant occupied the instant house under the right of retention, which is a legitimate right of possession. As such, insofar as the Defendant’s possession cannot be deemed to be illegal possession, the Plaintiff’s above assertion premised on this premise is without merit.

B. Determination on the part of the claim for unjust enrichment

The plaintiff asserts that, if the defendant's occupation is based on the right of retention, as long as the house of this case actually occupies and uses the house of this case, the amount equivalent to the monthly rent corresponding to the profit during the occupation period is the obligation to return it to the plaintiff as unjust enrichment.

However, as seen earlier, it is recognized that the Defendant continued to possess the instant house by exercising the right of retention, but there is no evidence to prove that the Defendant had gained substantial benefits by using and making profits from the instant house, even if the Defendant incurred a certain loss to the Plaintiff, the owner of the instant house, due to the possession of the instant house, the Defendant cannot be deemed to have a duty to return the monthly rent to the Defendant as unjust enrichment. Thus, the Plaintiff’s above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the above scope of recognition, and the remaining claims are dismissed for reasons. Since the judgment of the court of first instance is partially unfair with the conclusion, the part against the plaintiff corresponding to the above order of delivery among the judgment of the court of first instance shall be revoked, and the delivery shall be ordered to the defendant, and the remaining appeal of the plaintiff shall be dismissed for reasons. It is so decided as per Disposition.

[Attachment Form 1]

Judges Lee Jin-hee (Presiding Judge)