Main Tech Co., Ltd.

Defendant (Attorney Kim Chang-hoon, Counsel for defendant-appellant)

March 8, 2013

Incheon District Court Decision 201Gahap23572 Decided August 31, 2012

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The defendant shall pay to the plaintiff 208,560,000 won with 6% per annum from August 5, 2010 to the service date of the complaint of this case, and 20% per annum from the next day to the day of full payment.

2. Purport of appeal

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

1. Basic facts

A. The Plaintiff is the owner of the construction project that newly constructs two warehouses and one research institute (hereinafter “instant construction”) on the said land as the owner of woodland 3,908 square meters in Gwangju-si ( Address 1 omitted). The Plaintiff is the construction company that received a contract from the Plaintiff for the instant construction project, and the Defendant is the representative director of the relevant construction project.

B. Progress of the instant construction project

(1) On June 25, 2009, the Plaintiff entered into a contract for construction work of this case with the Liber Construction with the construction cost of KRW 1,870,00,000 and the construction period of KRW 1,870,000 during the construction period from June 29, 2009 to December 15, 209. The Plaintiff and Liber Construction entered into a contract for construction change with the content that the construction cost of this case would be increased to KRW 2,546,50,00 on February 11, 201, and the construction period would be extended to March 30, 2010. The construction work was executed until April 20, 2010 according to the modified construction contract.

(2) On April 2010, the Plaintiff filed an application for approval to use the building newly constructed by the instant construction (hereinafter “new building of this case”) with the competent authority for the use of the said building. As a result of a field investigation more than four times from April 21 to May 4, 201, the Plaintiff failed to obtain approval for the use of the relevant building since it was not corrected, such as exceeding the building-to-land ratio of the underground floor of the research institute Dong, and

(3) The Plaintiff refused to pay for the remainder of construction work equivalent to approximately KRW 200,00,000 for the refusal of approval for use as above and the need for complementary construction accordingly, and requested Liber Construction to do so. The Plaintiff did not comply with the Plaintiff’s request for supplementary construction upon demanding the increase of construction cost. Meanwhile, the construction cost that the Plaintiff paid for Liber Construction up to that point is KRW 2,336,170,000.

(4) On May 18, 2010, the Plaintiff terminated the contract for the construction with the Liber Construction on the ground of the non-construction and the rejection of complementary construction works. The Defendant, etc., the representative director of Liber Construction, etc., exercised a lien on the claim for the remainder of construction works as the secured claim on May 18, 2010, while occupying the instant new building and construction site and controlling the Plaintiff’s access, and was completed on August 4, 2010 at the construction site.

C. When the Plaintiff was unable to use the new building because it failed to obtain approval for the use of the new building of this case, on May 31, 2010, the Plaintiff leased the lease deposit of KRW 30,000,000,000, monthly rent of KRW 2,800,000, and one year for the lease term of KRW 1,50,000 for the new building of this case (hereinafter “instant ○○○ factory”). Meanwhile, on May 24, 2011, the Plaintiff obtained approval for temporary use from the Gwangju City Mayor for the new building of this case.

D. Progress of civil and criminal cases pertaining to the instant project

(1) He filed a lawsuit against the Plaintiff for the payment of the remainder of the construction work and additional construction costs (No. 2010da 136,856,671) as the counterclaim (the above court 2010da 13523). The Plaintiff also filed a lawsuit for the repair of the remainder of the construction work and the compensation for delay (the above court 2010da 13523). The Plaintiff’s claim was accepted only the remainder of the construction work 210,325,00 won and the additional construction cost claim is not recognized in the counterclaim, but the above court found the Plaintiff’s defect repair and the compensation for delay 481,896,363 won and the compensation for delay 205da 2750, the remainder of the 271,571,363 won and the compensation for delay 205Gan Construction and the compensation for delay remaining in the counterclaim 205,290DaRan 2971275,214 and the remaining damages for delay 2972120

(2) In addition, the Plaintiff filed a lawsuit against the construction mutual aid association that entered into a guarantee contract with the contents of the guarantee contract for the failure to perform the construction works in the construction works in the construction works in the construction works in the Seoul Central District Court 2010Kahap74909, which caused the occurrence of the guarantee accident due to the failure to perform the construction works in the construction works in the construction works in the construction works in the Seoul Central District Court 2010Kahap74909, and lost the first instance court. In the Seoul High Court 2012Na7542, the appellate court rendered a judgment ordering the construction mutual aid association to pay the Plaintiff the contract deposit amount of KRW 254,650,00 and the delay damages for the construction works in the construction works in the first instance on the ground that the contract is terminated due to the termination of the contract due to the failure to perform the construction

(3) The Defendant was subject to criminal punishment of fines for criminal facts, such as: (a) the Plaintiff’s loss due to the completion of construction works is more than the amount of the claim for construction works against the Plaintiff, and illegally occupied the construction site and interfered with the Plaintiff’s work progress; and (b) the instant case is currently pending in the final appeal.

[Ground of recognition] Facts without dispute, Gap's evidence Nos. 1 through 5, 17, 18, 19, 21 through 30, Eul's evidence No. 6, and the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's right of retention is the result of the defendant's act as a representative agency of Mana Construction, so the lawsuit of this case seeking compensation for damages against the defendant, not the Mana Construction, is an unlawful lawsuit against the non-qualified person. However, in the lawsuit for performance, the plaintiff's right of retention has the standing to be the defendant. Thus, the defendant's defense is without merit.

B. The Defendant asserted to the effect that the lawsuit of this case is unlawful, since Nonparty 4, the largest manager, was engaged in litigation in violation of the Attorney-at-Law Act by preparing and submitting a complaint and a preparatory document, etc. However, there is no evidence to acknowledge that the litigation of this case was conducted by the largest manager, and the litigation, such as the attendance and statement on the date of pleading of this case, was conducted directly by the representative director of the Plaintiff. The Defendant’

3. Judgment on the merits

A. The plaintiff's assertion

Although the Defendant did not have the secured debt to the Plaintiff, it illegally occupies the construction site despite the absence of the secured debt to the Plaintiff, thereby causing damages equivalent to KRW 187,684,803 as follows, and thus, the Defendant is liable to compensate the Plaintiff for such damages.

(1) Rent, etc. for four months from June 2010 to September 201 for the instant ○○ factory

(1) Rent 1,200,000 (2,800,000 won x 4 months)

(2) Management expenses 6,403,860 won

(3) Interest on loans of 30,000,000 won 859,315 won

(4) 15,644,660 won, such as electric source works, etc.

(2) Electricity cost of the Plaintiff’s newly built building 6,876,330 won

(3) Interest 4,100,638 won on measuring instruments, etc. not used at the new site

(4) EMChaber replacement cost of KRW 61,000,000

(5) The Defendant’s sales loss of KRW 54,00,00 ( KRW 275,200,000, KRW 153,600,00, KRW 155,200, KRW 300, KRW 155,200, KRW 15,200, KRW 815,200,00, KRW 15,000, which was net loss of equipment sales loss) caused by the Plaintiff’s failure to install the equipment for the purpose of illegally occupying the construction site (i) the equipment purchased by the Plaintiff for the four months.

(b) Markets:

(1) The legality of exercising the right of retention

However, according to Article 320(2) and (1) of the Civil Act, if the possession of an article has been caused by a tort, there is no room for the establishment of the right of retention. However, such possession is included not only in the tort actively committed, i.e., deprivation, fraud, coercion, etc., but also in the case of commencement without the title of possession that the possessor may oppose the owner, and without the knowledge of the absence of title or negligence even though he knew or could have known of the absence of title.

However, each of the following circumstances acknowledged as evidence, namely, ① the Plaintiff refused to pay residual construction costs due to the defect in the construction process of the inspection for approval of use, and ② the Plaintiff terminated the instant contract on May 18, 2010 on the ground that the aforementioned non-construction and supplementary construction were rejected; ③ the Defendant occupied the new building and exercised lien rights at the time of such termination; ④ the Plaintiff’s demand for the principal construction cost and the defect repair counterclaim lawsuit [No. 2010, No. 12131, No. 2010, No. 2010, No. 201323 (Counterclaim), and the Plaintiff did not have any obligation to pay the remainder of the claim for the remainder of the construction cost due to the defect in the construction process, for the reason that it was objectively more than the remainder of the claim for the remainder of the construction cost due to the defect in the construction work at the time of the Plaintiff’s non-existence of the construction work at the time of the commencement of construction work at the time of the aforementioned termination.

(2) Scope of damages

(A) As seen earlier, the Plaintiff obtained a provisional approval for temporary use for the instant new building only on May 24, 201, and thus, it was impossible to use the said new building before that approval (see Article 22(3)2 of the Building Act). Therefore, it cannot be said that the Defendant illegally occupied the instant new building for the said period that the Plaintiff was unable to use the said new building during that period. However, as the Defendant delayed the completion of the construction of the instant new building for a large period of illegal occupation, it may be deemed that the time for using the said new building for the said period has been delayed. As such, as the Plaintiff sought, for the convenience of calculation, the period for which the Defendant illegally occupied, namely, from May 18, 2010 to August 4, 2010, deeming the Plaintiff was unable to use the said new building for the period of time, and thus, the damage incurred by the Defendant’s illegal occupation should be assessed as a damage caused by the Defendant’s illegal occupation.

(b) recognized damages;

1) Rent, management expenses, and interest on deposit of the instant ○○ Factory

The defendant's illegal occupation costs incurred in renting the ○○ Factory in this case during the period of the illegal occupation constitute damages caused by the defendant's illegal occupation. In full view of the purport of the whole pleadings stated in Gap evidence 6-1 through 5, the details are as follows: ① 7,135,483 won [2,80,00 won x (2 + 17/31) month x (2 + 17/31), hereinafter the same shall apply], ② management expenses 3,205,839 won [2,205,380 won for June + 1,056 + 879,200 won for 4 days x 270,259 won (2,094,510 won x 4/310) x 4/510), ③ interest on deposit 320,547 won [30,000 won x 5% annual interest rate x 85% (35% annual interest rate] of the plaintiff.

2) EMChaber replacement costs

In full view of the contents of evidence Nos. 11 and 20 and the purport of the entire pleadings, it is recognized that the EMM engineering corporation, which received a contract from the Plaintiff, was installed in the new building of this case, and the equipment was installed as a result of the failure to complete a sealed space due to the Defendant’s illegal occupancy, and the installation cost of KRW 61,00,000 was additionally incurred to dismantle and reconstruct the corrosioned parts. Accordingly, this part also constitutes damages caused by the Defendant’s illegal occupancy.

(c)a loss not recognized;

1) Expenses for the construction of the instant ○○ Factory electric power plant

Although the Plaintiff asserts that all part of the construction cost is damages caused by the Defendant’s illegal occupation, this part of the construction cost is naturally spent for the use of the instant ○○ Factory prior to obtaining approval for the use of the instant new building even if the Defendant was not illegal occupation, and it is difficult to view that it falls under damages caused by the Defendant’s illegal occupation. The Plaintiff’s assertion on this part is without merit.

2) Electricity costs for the new building of this case

The plaintiff asserts that the power costs for the new building of this case are damages that the defendant should compensate for during the illegal occupation period of the defendant. However, this part of the costs are the expenses that the plaintiff spent even after using the new building of this case, so it is difficult to view that it constitutes damages caused by the defendant's illegal occupation. Therefore, the plaintiff's assertion on this part

3) In addition, the Plaintiff asserts that interest on measurement equipment, etc. not used in the instant new building, 10m electromagnetic radiation measurement equipment purchased by the Plaintiff, 10m electromagnetic radiation measurement equipment, automobile electric appliances measurement equipment, and sales loss caused by failure to use nuclear and military measurement equipment, etc. However, in light of the fact that the Plaintiff leased the instant ○○ factory for the aforementioned illegal occupation period, it cannot be readily concluded that the Plaintiff was unable to use the said equipment, equipment, etc. for that period due to the Defendant’s illegal occupation. Moreover, each of the above evidence alone is insufficient to acknowledge that the Plaintiff caused the loss of the amount claimed by the Plaintiff, and there is no evidence to acknowledge otherwise. This part of the Plaintiff’s assertion is without merit.

C. Sub-committee

Therefore, the Defendant is obligated to pay to the Plaintiff 71,661,869 won (rent 7,135,483 + management expenses + KRW 3,205,839 + interest on deposit + KRW 320,547 + 61,00,000 on August 5, 2010, which is the day following the termination of illegal occupation, to the Plaintiff, for damages incurred by the Defendant due to illegal occupation: five percent per annum under the Civil Act from August 31, 2012 until August 31, 2012; and twenty percent per annum under the Civil Act from the next day to the day of full payment until the day of full payment.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. The judgment of the court of first instance is just and the defendant's appeal is dismissed as it is without merit.

Judges Kim Jong-tae (Presiding Judge)