2012Na3282 Possession and recovery

1. A;

2. B

3

4. Construction of mountain mountain field.

5. Central Hoho Construction Business;

[Judgment of the court below]

Attorney Lee Jae-soo et al.

Sungsan Co., Ltd.

1. F;

2. G:

3

4. I

Defendant’s Intervenor J, K

Changwon District Court Decision 2010Kahap5793 Decided June 13, 2012

June 13, 2013

August 22, 2013

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal, including the part arising from the supplementary participation, shall be borne by the Plaintiffs.

The judgment of the first instance shall be revoked. The defendant shall deliver to the plaintiffs the buildings listed in the attached list (hereinafter referred to as the "building of this case").

1. Basic facts

A. The plaintiffs were awarded a subcontract for the construction of the building of this case from Changwon Hot Springland Co., Ltd. (hereinafter referred to as " Changwon Hot Springland") and Songwon Construction Co., Ltd. (hereinafter referred to as "Songwon Integrated Construction").

B. As to the building of this case, Songwon Construction was reduced by entrustment of the provisional disposition registration on August 26, 2002, and completed the registration of ownership preservation in its name. Changwon Hot Springland completed the registration of ownership transfer on December 3, 2002 under its name on December 23, 2002. Voluntary auction on the building of this case was commenced on November 17, 2004 (C Changwon District Court Decision 2004Da46461), Plaintiff B, and Cho Sung-sung, were made on January 8, 207, around June 13, 2007, and around February 25, 2008, and around June 20, 2009, the registration of ownership transfer was completed in its name on June 20, 2009, and around June 16, 2009, respectively, on June 20, 2009.

C. On October 1, 2010, the construction of the consignor General Construction completed the registration of ownership transfer on the instant building due to sale and purchase on August 9, 2010.

D. On October 11, 2011, a compulsory auction was commenced on the instant building (Chowon District Court Decision 2011Ma15694), and the Plaintiff’s Intervenor F, G, H, and I, who was affiliated with the instant building on December 21, 2012, completed the registration of ownership transfer for reasons of sale due to voluntary auction on December 21, 2012, and the present building is occupied.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, 5, Gap evidence 21-2, the purport of the whole pleadings

2. The plaintiff's assertion

The gist of the Plaintiff’s assertion is that the Plaintiff, as a subcontractor of the Construction Construction of the instant building, was exercising the right of retention while occupying the instant building in order to preserve the claim for the payment of the construction cost due to the failure to pay the construction cost due to the integrated construction cost. However, around June 12, 2009, the Defendant deprived the Plaintiff’s possession of the instant building. As such, the Defendant sought the recovery of possession deprived of possession pursuant to Article 204 of the Civil Act against the Defendant. 3.

A. Whether the defendant was deprived of possession

If a possessor is deprived of possession, he/she may demand the return, etc. of the article (Article 204(1) of the Civil Act). In such a claim for the recovery of possession, only is examined as to whether the article was occupied at the time he/she asserts that he/she was deprived of possession. Here, “Possession” refers to the objective relationship in which the article is deemed to fall under the factual control of sight according to social norms. In order to have a factual control, the physical and practical control of the article is not necessarily required. Whether the article is de facto control should be determined in accordance with social norms by taking into account the time and spatial relationship with the article, the principal right relationship, the possibility of excluding others’ control, etc. (see, e.g., Supreme Court Decision 2010Da18294, Jul. 15, 2010). The claim for the return of the article stipulated in Article 204(1) of the Civil Act is sufficient to prove that the Plaintiff was deprived of possession by the Defendant, and that the right to possess the article is 2015.

Comprehensively taking account of the overall purport of arguments as a result of the examination conducted by the defendant representative director in Gap's 4, 17, and 20 (including each number) and the defendant representative director in the trial, ① around June 2009, construction business operators including the plaintiffs and Songwon Construction et al. used part of the building of this case as the office and occupied the building of this case by putting a banner that the plaintiff et al. exercises the right of retention outside the building of this case. ② The defendant acquired the ownership of the building of this case on June 10, 2009, ② acquired the ownership of the building of this case on June 10, 200, the defendant mobilized the service business employees of the plaintiff Gap and Songwon Construction, et al., who were on the building of this case, forced out of the building of this case, prevented from entering the building of this case, and arbitrarily removed the building of this case. According to the above recognition that the plaintiff et al., installed the building of this case, the defendant occupied the building of this case at least 209.

B. If the possessor was deprived of his possession, the other party to the claim for the return of the article is currently possessing the article (see, e.g., Supreme Court Decision 77Da865, Dec. 13, 197). If the possessor intended to claim the delivery on the ground of an illegal possession, the person who actually occupies the article must be the same, and even if the possessor was an illegal occupant, the person who actually occupies the article has not actually occupied it to another person, the claim for the delivery against the possessor is unjust (see, e.g., Supreme Court Decision 98Da9045, Jul. 19, 199).

In the case of this case, the person who occupies the building of this case as of the date of the closing of argument in the trial room is not the defendant but the defendant's assistant intervenor. Therefore, the plaintiffs' claim is without merit without examining it.

4. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in its entirety due to the lack of reason, and the judgment of the court of first instance is just, and the plaintiffs' appeal is dismissed in its entirety due to the lack of reason. It is so decided as per Disposition.

Article 5 (Presiding Judge)

Han Gyeong-Gyeong

Park Won-won

List

Changwon-si Sungwon-dong 391-9

4 underground floors, 9 floors above ground;

Neighborhood Facilities and Business Facilities

1308.60m underground floor (mechanics, electricity rooms, etc.)

Underground third floor (Central Monitoring Office) 62.10m

The second underground floor (parkings, Cooperation Offices) 5592.60 meters

1st underground floor (sales facility) 5379.10m

1st floor (sales and automobile-related facilities) 3699.90 square meters

2nd floor (sales facility) 4087.26m

3rd floor (e.g., 4257.90m)

4 Floors (living facilities) 3799.26m of square meters

5 floors (living, viewing and assembly facilities) 3799.26§³

6.00 square meters of 3643.56 meters of 6 stories (living, educational or research facilities)

7th floor ( neighborhood life, sports, educational research, business facilities) 3730.00m

8. A 8-story (living, business facilities) 2607 square meters

9 Floors ( Neighborhood life, sports facilities) 2403.45 meters end.