2010Da8624 Amount of money taken over

Sstiel Co., Ltd.

Law Firm Barun

Attorneys Park Jae-chul et al.

Defendant

Law Firm LLC, Attorney Park Jae-soo

Attorney Lee Jae-hoon et al.

Supreme Court Decision 2009Da15602 Decided September 24, 2009

Seoul High Court Decision 2009Na88749 Decided December 24, 2009

November 29, 2012

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal No. 1, in a case where a building under construction has a form and structure that can be seen as an independent building under ordinary social norms, the object of ownership is an independent real estate apart from the land, and if a minimum pole, roof, and main wall is made, it shall be deemed that it satisfies the requirements of independent real estate (see, e.g., Supreme Court Decision 2000Da16350, Apr. 26, 2002). In addition, in a case where movable property such as construction materials is combined during the construction process of a new building and a part of the land or a building is composed of movable property, so that the movable property is attached or combined to the land or a building to the extent that it can not be separated without causing damage to or excessive expenses, or that the land or a building cannot be the object of separate ownership in trade with an independent economic utility from the land or the building, if

Under the premise that the factory building of this case is subject to acquisition and loss of ownership due to the conformity of building materials used to construct the factory building of this case only at the time it satisfies the requirements of the building as an independent real estate separate from land, the lower court determined that the building of this case was consistent with the building of this case before February 12, 2007, taking into account the various circumstances as indicated in its reasoning, including the construction method of the factory building of this case, the progress of the construction process, and the agreement and payment status of the construction cost, and thus, the building of this case already meets the requirements of the building as an independent real estate under the generally accepted social norms.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and evidence duly admitted, the judgment below was somewhat inappropriate at the time of this part of the reasoning that the building in construction meets the requirements of a building as an independent real estate separate from the land, but the legal effect of extinguishing and acquiring the ownership of building materials is not generated due to conformity. However, the conclusion of the judgment below which recognized the time when the factory building in this case satisfies the requirements of a building as an independent real estate, and at least at least determined that the ownership of the steel products in this case was extinguished and the defendant acquired the ownership of the steel products in this case. In so doing, it did not err by misapprehending the legal principles as to the requirements of a building as an independent real estate, as otherwise alleged in the grounds of appeal, thereby affecting the conclusion of the judgment. The ground of appeal

2. As to the ground of appeal No. 2, in a case where a contractor for construction works did not know that ownership of construction materials attached to a building was reserved against a third party other than the original contractor without any negligence, it is reasonable to deem that a contractor has no obligation to comply with a claim for compensation under Article 261 of the Civil Act, as in the case of bona fide acquisition. In this case, whether the contractor was not aware of the above circumstances shall be determined by taking into account the details and details of the relevant construction contract, the relationship between the contractor and the subcontractor, the degree of the progress of the work and the payment of the construction cost, the current status of the payment of the construction cost, general transaction practices, etc., and the burden of proof of negligence shall be borne by the contractor. However, unless there is no objective circumstance to suspect the existence of the ownership reservation agreement, unless there is any objective circumstance that the contractor does not know the existence of the ownership reservation agreement.

The lower court found that the Defendant did not know that the ownership of the instant steel products was reserved to the Plaintiff, a seller of the building materials, at the time when the instant steel products were owned by the Defendant, the contractor due to conformity with the construction process of the instant plant building.

Examining the reasoning of the judgment below in light of the evidence duly admitted, the above judgment of the court below is based on the legal principles as seen earlier, and there is no violation of law by misapprehending the legal principles as to the burden of proof without negligence, etc. as otherwise alleged in the grounds of appeal. The Supreme Court precedents cited in the grounds of appeal are different from this case, and thus it is inappropriate to invoke this case. The allegation in the grounds

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim So-young

Justices Lee Sang-hoon

Justices Kim Yong-deok