[1] The case holding that a seizure or sale of a low temperature warehouse which ought to be viewed as a real property as a part of a building is null and void in violation of a direct branch jurisdiction

[2] The case holding that where a movable which is the object of factory mortgage was seized and sold in accordance with the procedure of corporeal movables auction, the seizure is not void as a matter of course, but can only be cancelled by objection against the execution, and the buyer acquired the ownership of the object of response

[3] In a case where the object of factory mortgage is separated from that of the mortgagee's consent and sold at auction, whether the Civil Code's bona fide acquisition provision applies (affirmative)

[4] The case denying the bona fide acquisition of the above movable property by recognizing the negligence of the third party purchaser who did not take appropriate measures to verify the truth where the movable property which is the object of the factory mortgage is recorded in the list of factory mortgage and is established in the building which is the object of the factory mortgage

[1] The case holding that in case of seizure or sale of low temperature warehouses, which should be viewed as real property as part of a building, by means of movable execution, it shall be null and void in violation of the direct branch jurisdiction

[2] The case holding that in case where a movable which is the object of factory mortgage was seized and sold in accordance with the auction procedure for corporeal movables, the seizure is not null and void as a matter of course, but can only be revoked by objection against execution, and the buyer acquired ownership of the object of response

[3] According to Article 9(1) of the Factory Mortgage Act, if the object of the factory mortgage is separated without the consent of the mortgagee, the mortgage still remains effective even after it is delivered to the third acquisitor, but Article 9(2) of the same Act recognizes the bona fide acquisition by stating that "the provisions of the preceding paragraph do not affect the application of Articles 249 through 251 of the Civil Act". A successful acquisition by a successful bidder in a compulsory sale procedure can be deemed as applicable to the provisions of the Civil Act that bona fide acquisition by a successful bidder of a movable property in a compulsory sale procedure. Thus, the above provisions can be applied even where the object of the

[4] The case denying the bona fide acquisition of the above movable property by recognizing the negligence of the third party purchaser who did not take appropriate measures to verify the truth in a case where the movable property which is the object of the factory mortgage is recorded in the list of factory mortgage and is established in the building which is the object of the factory mortgage

[1] Article 99 of the Civil Act, Articles 78 and 188 of the Civil Execution Act / [2] Article 7 of the Factory Mortgage Act, Articles 16 and 189 of the Civil Execution Act / [3] Article 9 of the Factory Mortgage Act, Article 249 of the Civil Act / [4] Article 9 of the Factory Mortgage Act, Article 249 of the Civil Act

National Agricultural Cooperative Federation (Attorney Nam-jin, Counsel for defendant-appellant)

Seoul High Court Decision 201Na1448 decided May 1, 201

Hyundai Capital Co., Ltd. (Attorney Park Jin-jin, Counsel for the defendant-appellant)

September 2, 2005

1. The Defendants confirmed that the items listed in the list Nos. 1 and 2 of the attached Table 1. are owned by Nonparty 1 Agricultural Products Distribution Business Association (name: address 233-20 per movable property in the Cheongbuk-gun, Cheongbuk-do), and confirmed that the items listed in the list Nos. 3 and 4 of the attached Table 1. are a factory mortgagee by the registration office of Cheongdo Office of the Daegu District Court as of May 2, 2005, received No. 6521 on May 2, 2005.

2. The plaintiff's remaining main claims are dismissed.

3. Of the litigation costs, the part relating to the participation shall be borne by the supplementary intervenor against the defendant, and the remainder shall be borne by the defendants.

The primary purport of the claim is to confirm that each of the items listed in the list is owned by the non-party 1. The defendant's ownership of the non-party 1.

Preliminary claim: The defendants confirm that the plaintiff is a factory mortgagee upon the registration of establishment of a neighboring mortgage in accordance with the Daegu District Court's Cheongdo Office's receipt of the registration office No. 6521 as to each of the items listed in the list.

1. Facts of recognition;

The following facts are either disputed or acknowledged in light of the following facts: Gap's evidence Nos. 1 through 7, 11, 12, 15, 18 through 22, 24, Gap's evidence Nos. 8, 2, 3, Gap's evidence No. 9, 13, 14, 16, and 17-1 through 6, Gap's evidence No. 23-7, Eul's evidence No. 25-7, and Eul's evidence No. 1 and the whole purport of the pleadings.

A. On November 1, 200, an agricultural partnership (hereinafter referred to as the “agricultural partnership”) purchased each land of 558-21 miscellaneous land of 3,320 square meters (hereinafter referred to as the “instant land”) such as 558-20 square meters in the Doo-ri-ri-ri, Cheongbuk-do, Chungcheongnam-do, Chungcheongnam-do, Chungcheongnam-do, Chungcheongnam-do, and Cheongbuk-do. On April 28, 2001, around April 28, 2001, an agricultural partnership (hereinafter referred to as the “agricultural partnership”) newly constructed the instant building of 154 square meters in the 2,682.9 square meters (hereinafter referred to as the “instant building”). On October 7, 2002, the machinery listed in the list of the instant buildings (hereinafter referred to as “the instant machinery”) was owned by the owner of the instant machinery.

B. Around April 30, 2001, a farming corporation concluded a mortgage agreement with the Plaintiff on the instant land, buildings, and machinery pursuant to Article 7 of the Factory Mortgage Act. On May 2, 2001, the Daegu District Court received the Cheongdo Office of Registry pursuant to Article 6521 on the ground of the above mortgage agreement, which completed the registration of establishment of a collateral under Article 7 subparag. 34 of the Factory Mortgage Act.

C. A farming corporation failed to repay its debts to Hyundai Capital Co., Ltd., LeeMapact Engineering Co., Ltd., subordinate land, and Hawn Korea Co., Ltd. The above creditors filed an application for auction of corporeal movables as indicated below from March 2003, and the above creditors filed an application for auction of corporeal movables as listed in the list No. 4 as shown below. On July 24, 2003, when the auction procedure was in progress, the items listed in the list No. 5 was added to the auction subject matter.

D. As indicated below, as a result of the auction procedure conducted as indicated in the list, the defendant Cho Jong-sung was awarded a successful bid of KRW 233-20 on August 14, 2003 to KRW 57,210,00 on the movable property of the Cheong-do, Gyeong-do, the location of which is the object, and KRW 57,210,00 on the list, and paid the price therefor. On August 17, 2003, he sold the above object to Lee Jong-sung (as indicated in the list in [Attachment 5] and the seizure list in [Attachment 2036209 and 203734].

본문내 포함된 표 3 채권자 채무 명의 압류일 압류목적물 감정가액 배당액 2003가3571 이마팩엔지니어링(주) 수원지방법원 성남지원 2003카단50251 2003. 4. 2. 별지 4 47,920,000원 27,657,678 2003본3589 현대캐피탈(주) 팔공합동 2003증10765 공정증서 2003. 4. 2. 〃 〃 5,319,345 〃 〃 2003. 7. 24.(추가압류) 별지 5 33,000,000원 2003본3734 현대캐피탈(주) 팔공합동 2003증12577 공정증서 ？ ？ ？ 5,934,312 2003본6209 하필근 (법)금강 2002증704호 공정증서 2003. 6. 5. 별지 4 ？ 8,008,324 〃 〃 2003. 7. 24.(추가압류) 별지 5 ？ 2003본8207 (주)하늘상운 수원지방법원 안산지원 2002가단9110 2003. 7. 24. 별지 4, 5 80,920,000 7,174,359 2003본10204 현대캐피탈(주) 울산공증인합동 2002증32906 공정증서 2003. 8. 7. 별지 4, 6 〃 1,100,832

2. The parties' assertion

The plaintiff is primarily null and void in the auction procedure for the goods listed in the separate sheet No. 1. As such, the defendants cannot acquire ownership, therefore, sought confirmation of ownership against the defendants who asserted that the above goods are owned by the farming corporation, and even if the auction procedure is valid for the above goods, the defendants were merely awarded a successful bid for the goods subject to restriction on the plaintiff's mortgage, and thus, the plaintiff is the mortgagee for the goods listed in the separate sheet No. 1. 1. Thus, the defendants who asserted

On the other hand, the Defendants asserted that: (a) the articles listed in the list No. 1, attached hereto, obtained ownership by lawful bid; and (b) even if the Defendant Respondent did not acquire ownership, the Defendants were unable to comply with the Plaintiff’s claim by asserting that they acquired the instant corporeal movables in good faith.

3. Determination as to the items listed in [Attachment 1. List Nos. 1 and 2]

A. Whether the auction procedure is valid

In full view of the purport of the arguments in the above evidence, the building of this case was composed of low temperature storage and bold storage and collection center. The building of this case was designed and newly constructed for the purpose of low temperature storage, and part of the building management ledger was divided into a bold storage and low temperature storage as part of the building. After completion, the building was used as a low temperature storage until now. The building’s marking column of the copy of the building register and the list of Article 7 of the Factory Mortgage Act is also indicated as “2,682.9m2.9m2.” The low temperature storage and towing room, which are the objects listed in [Attachment 1] Nos. 1 and 1. 1. 1. 2, which were attached to the building of this case, are divided into 7 and 2 spaces from the time of the new construction of the building of this case, and were firmly attached to the non-building building of this case and thus, it cannot be separated from the building or the building of this case, and even if it is contrary to the evidence No. 2-1, it still becomes invalid. 1.

B. The defendants' bona fide acquisition assertion

Even if the auction procedure is null and void, the Defendants asserted that the Plaintiff’s claim is groundless, but it is apparent that the Defendants’ bona fide acquisition is not subject to bona fide acquisition as long as the said articles are deemed real estate. Therefore, the Defendants’ bona fide acquisition assertion is without merit.

4. Determination as to the items listed in [Attachment 1. List 3 and 4]

A. Whether the auction procedure is valid

In full view of the facts without dispute and the purport of all the arguments revealed earlier, the articles listed in paragraphs 3 and 4 of the annexed Table 1 are those inside the instant building, which are those stored in the lower temperature warehouse and the tugboat cooling room. Among them, the articles listed in Paragraph 3 of the annexed Table 3 are indicated as “the 2-A-2 bitr, the 7 set and the 4 set”, and the articles listed in Paragraph 4 of the annexed Table 1 of the annexed Table 1 are composed of a part of the nitrokeer or Connish oil, and it can be acknowledged that they are part of the objects of the mortgage as stipulated in the Factory Mortgage Act. Even if a movable is the object of the factory mortgage, which is the object of the mortgage, the seizure is not automatically null and void, but can be revoked by adding to the building that is subject to the execution (Article 16 of the Civil Execution Act) and the buyer can not be viewed as being a part of the above building, but can not be viewed as a part of the building.

B. Whether to recognize the bona fide acquisition

However, if the successful bidder acquires ownership, it would be problematic whether the factory mortgage will continue to exist, and according to Article 9(1) of the Factory Mortgage Act, if the object of the factory mortgage is separated from the object of the factory mortgage without the mortgagee's consent, the mortgage still remains effective even after the delivery to the third acquisitor, but the provisions of paragraph (2) of the same Article provide that "the provisions of the preceding paragraph shall not affect the application of Articles 249 through 251 of the Civil Act" shall be deemed to be effective, and the provisions of the Civil Act shall be applied to the successful bidder of the movable property in the process of compulsory auction (see Supreme Court Decision 97Da32680 delivered on March 27, 1998). Thus, the above provisions shall also apply to the auction of the object of the factory mortgage.

Therefore, as seen earlier, the defendants' good faith and negligence were recorded in the factory mortgage list as seen earlier, and the situation established in the building of this case is recognized as continued at the time when the defendants acquired ownership. In such a case, the acquisitor shall be deemed to have inquire of the mortgagee, whether the mortgagee requires presentation of a document proving the fact, or not, and there is no negligence. There is no evidence to prove the fact that the defendants taken such measures. Rather, in full view of the purport of the argument in evidence No. 25-7, Kim Jong-sung, a farming corporation, was unaware of the fact that each of the items listed in the list No. 1, No. 25-7, was included in the object of auction, and there was an auction, and it was no intention to purchase the article by telephone before and after three days, and at least it was known that the above items were purchased by Kim Jong-sung had been purchased by the defendants, but it was not reasonable to recognize that each of the items was purchased by the defendants to have been purchased by the owner of this case. Accordingly, it did not change the circumstances that each of this case was purchased by the above article to be purchased.

5. Conclusion

If so, the plaintiff's main claim concerning each real estate listed in the list 1 and 2 of the annexed Table 1. The plaintiff's main claim is justified, and the main claim concerning each real estate listed in the list 3 and 4 of the annexed Table 1. The main claim is dismissed as it is without merit, and the conjunctive claim for each real estate listed in the list 3 and 4 of the annexed Table 1. It is so decided as per Disposition.

Judges Kim Sung-he