[1] Method of public notification of the acquisition, loss, and transfer of ownership of construction machinery (registration under the Construction Machinery Management Act)

[2] Whether the general legal doctrine on real estate title trust applies to a title trust based on the registration of construction machinery (affirmative)

[1] Article 3(1) of the former Construction Machinery Management Act (Act No. 4561, Jun. 11, 1993) provides that owners of construction machinery shall register the construction machinery (Article 3(1) of the former Construction Machinery Management Act, unlike automobiles, ships, aircraft, etc., there is no room for understanding that the registration of ownership of construction machinery is not required. However, in light of the provisions regarding the acquisition, loss, compulsory execution procedure, provisional seizure execution, etc. of mortgages on construction machinery, it is reasonable to deem that the former Construction Machinery Management Act provides the method of public announcement of the acquisition, loss, and transfer of ownership of the construction machinery,

[2] When concluding a facility leasing contract under the former Equipment Rental Business Act, a facility lessee intends to reserve the ownership of construction machinery to a facility leasing company, but the registration of the facility lessee on the construction machinery register with the facility lessee as the owner shall be deemed to have held the title trust of the relevant construction machinery by the facility leasing company. The provisions of Article 13-2 of the former Equipment Rental Business Act are to explicitly allow the title trust, and it does not provide for the purport that the general title trust doctrine does not apply to the case of the title trust of construction machinery. Thus, in the construction machinery, unlike the internal relationship between the facility leasing company and the facility lessee under the general title trust doctrine, the facilities lessee who is the title trustee is the owner in an external relationship.

[1] [1] Article 3 (1) of the former Construction Machinery Management Act (amended by Act No. 5303, Mar. 7, 1997); Article 186 of the Civil Act / [2] Article 103 of the Civil Act / [title trust] Article 13-2 of the former Construction Machinery Management Act (repealed by Act No. 5374, Aug. 28, 1997; see Article 33 of the current Specialized Credit Finance Business Act)

Han light Credit Professional Co., Ltd. (Attorneys Lee Young-young et al., Counsel for the plaintiff-appellant)

Defendant 1 and 12 others (Attorney Clinical-soo et al., Counsel for the defendant-appellant)

1. All of the plaintiff's claims are dismissed.

2. Litigation costs shall be borne by the plaintiff.

Based on the executory exemplification of the recognition and recognition protocol prepared on August 14, 1998 with respect to the claim for wages, etc. by the Seoul District Court 98Gahap12087 against the non-party New Technology Industry Co., Ltd., the compulsory execution against construction machinery listed in the separate sheet on November 30, 1998 shall not be allowed.

1. Basic facts

The following facts are either disputed between the parties, or acknowledged by Gap evidence 1, Gap evidence 2, Eul evidence 3-1 to 6, and non-party witness's testimony based on the whole purport of the pleading, and there is no counter-proof.

A. The Defendants filed an application for compulsory auction against construction machinery listed in the separate sheet (hereinafter referred to as the “construction machinery of this case”) around November 1998 with respect to the claim for wages, etc. against the non-party New Technology Industry Co., Ltd. (hereinafter referred to as the “non-party company”) at the Seoul District Court Dong Branch of the Seoul District Court on August 14, 1998, based on the executory exemplification of the recognition and recognition protocol prepared on August 14, 1998, and the above court forced the order to commence compulsory auction against the above construction machinery on November 30, 1998.

B. On March 16, 1994, the Plaintiff entered into a facility leasing agreement with the non-party company on the instant construction machinery, and entered into a modified agreement on April 29 of the same year (hereinafter referred to as the "facility leasing agreement of this case"), and imported the instant construction machinery overseas and delivered it to the non-party company.

C. In concluding the instant facility leasing agreement with the Nonparty Company, the Plaintiff agreed to register the instant construction machinery, which is an object of facility leasing, in the name of the Nonparty Company pursuant to Article 13-2 of the former Equipment Rental Business Act (Act No. 4450, Dec. 27, 1991), which was in force at the time, with respect to the construction machinery of this case, under the name of the Nonparty Company. The ownership of the construction machinery during the period of facility leasing is reserved to the Plaintiff. The Plaintiff agreed to obtain a first priority mortgage on the instant construction machinery for the purpose of securing the Plaintiff’s claim

D. Accordingly, the non-party company registered the non-party company as the owner and used the construction machinery of this case. The grounds for termination under the contract of this case, such as the non-party company's delinquency in paying facility rental fees, occurred, the plaintiff company lawfully terminated the contract of this case.

E. The Defendants are the creditors of wages and retirement allowances against the non-party company.

2. The assertion and judgment

A. Article 13-2 of the former Equipment Rental Business Act, which was enforced at the time of entering into the instant facility leasing contract, provides that a facility leasing company may register its construction machinery in the name of a lessee, notwithstanding the provisions of the Construction Machinery Management Act, so the registration does not change the ownership of the construction machinery. Thus, regardless of the registered name, the instant construction machinery is asserted that the Defendants seek the exclusion of compulsory execution against the instant construction machinery as the Plaintiff’s debt holder against the Nonparty company, regardless of its registered name, as long as the Plaintiff and the Nonparty Company registered the instant construction machinery as its owner, the Defendants are owned by the Nonparty Company in an external relationship, separate from the internal relationship between the Plaintiff and the Nonparty Company. Therefore, the Plaintiff cannot assert ownership of the instant construction machinery against the Defendants.

B. According to the former Construction Machinery Management Act, the Automobile Management Act provides that the owner of construction machinery shall not operate his/her automobile, vessel, aircraft, etc., which are movable property similar to that of construction machinery (Article 5 of the above Act), and that the acquisition, loss, or transfer of ownership of an automobile shall take effect only after the registration thereof (Article 6 of the above Act). The provisions of the former Construction Machinery Management Act explicitly stipulate that the acquisition, loss, or transfer of ownership of construction machinery shall take effect upon the establishment of ownership, mortgage, right of lease, alteration, or extinction of the construction machinery (Articles 2 and 3 above), and the Aviation Act provides that the acquisition, loss, or transfer of ownership of the construction machinery shall take effect upon the conclusion of the above construction machinery rental contract (Article 5 of the above Act), and that the former Construction Machinery Management Act (Article 4561 of the above Act) provides that the owner of the construction machinery shall be subject to provisional attachment and that the former Construction Machinery Management Act shall not apply mutatis mutandis to the acquisition, loss, or transfer of ownership of the construction machinery under title trust (Article 8 of the former Construction Machinery Management Act).

3. Conclusion

Therefore, in relation to the defendants, the plaintiff's claim of this case based on the premise that the plaintiff is the owner of the construction machinery of this case is without merit, and it is dismissed. It is so decided as per Disposition.

Judge 5-2 (Presiding Judge)