Heung Life Insurance Co., Ltd. (Law Firm Global, Attorney Ba-joon, Counsel for the plaintiff-appellant)

SPS security system and 10 others (Attorneys Choi Young-young et al., Counsel for the defendant-appellant)

June 23, 2009

Cheongju District Court Decision 2008Gahap238 Decided October 31, 2008

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

With respect to each real estate listed in the attached list No. 1, the defendants' lien shall be confirmed that all of them do not exist.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim against the defendants is dismissed in entirety.

1. Basic facts

A. The Defendants’ claim for construction price against Nonparty 1 and possession of the hotel of this case

(1) On November 3, 2003, Nonparty 1 purchased each land listed in [Attachment 1] Nos. 1 and 3 (hereinafter “each land of this case”) in the name of Nonparty 2, the wife, and entered into a contract with Defendant 10 to supply each of the following goods, including a hotel (hereinafter “instant hotel”) on the ground of the instant land, including each land of this case. From April 1, 2004 to November 2 of the same year, Nonparty 1 and the remaining Defendants except Defendant 10 entered into a contract with Defendant 10 as indicated in [Attachment 2] construction work.

(2) The remaining Defendants except Defendant 10 completed the instant hotel from April 2004 to February 2, 2005 in accordance with each of the above construction contracts, and completed the instant hotel. Defendant 10 supplied the goods 52,244,000 won, and Nonparty 1 on February 1, 2005, registered the preservation of ownership of the instant hotel, and operated the hotel with the trade name “○○ hotel”.

(3) However, the remaining Defendants, except Defendant 10, received only KRW 409,850,000 out of the total construction cost as indicated in the construction work list No. 2 attached Table No. 2 from Nonparty 1, and did not receive KRW 1,129,50,000 among the total construction cost as indicated in the attached Table No. 2. Defendant 10 did not receive KRW 52,240,000. As Defendant 10 did not receive the above goods price, Defendant 10 decided on November 18, 2006 to hold a meeting of ○○○○ hotel constructor’s hotel business operator, who possessed the instant real estate from Nonparty 1, thereby exercising the right of retention, and to delegate the exercise of the right of retention to Nonparty 3, the representative director of the Defendant Switzerland security system.

(4) Around that time, Nonparty 3 transferred the instant real estate from Nonparty 1 to the hotel wall of this case, and affixed to the entrance door of the sixth floor a banner stating “this building is the construction company’s possession while in possession,” and on November 30, 2006, Nonparty 4 operated a hotel from December 4, 2006 to December 3, 2009, setting the lease deposit deposit amount of KRW 20 million, monthly rent of KRW 20 million, and the lease period of the instant real estate from December 4, 2006 to December 4, 2006.

(5) The Defendants filed a lawsuit claiming construction cost payment of KRW 1,181,744,00 (the remainder amount of the construction project plus KRW 52,240,000) against Nonparty 1, the Cheongju District Court Chungcheong Branch Decision 2007Gahap637, and the total amount of the remainder of the construction project and the amount of the goods (the remainder amount of KRW 1,129,50,000 + the amount of the goods + the amount of KRW 52,240,000) and received a favorable judgment from the above court on November 2, 2007, and the above judgment became final and conclusive around that time.

B. The plaintiff's application for voluntary auction

(1) On September 22, 2005, the Plaintiff lent 1.9 billion won to Nonparty 1 for the due date on September 22, 2006 and 7.5% per annum, respectively. On the same day, the Plaintiff completed the registration of establishment of each of the respective premises of the hotel in the name of Nonparty 1 and the instant land in the name of Nonparty 2 as security, with the maximum debt amount of KRW 2.47 billion, and the debtor as Nonparty 1.

(2) Meanwhile, as to the hotel of this case on September 23, 2005 due to the disposition on default, on December 29, 2005, as to the land of this case on December 29, 2005, and on October 20, 2006, each of the registrations of seizure on the land of this case on October 3, 2006.

(3) In addition, with respect to the hotel of this case, the provisional attachment registration was completed on October 20, 2005; KRW 25 million; KRW 5 million; KRW 19,424,550 as claimed on December 9, 2005; KRW 28.5 million as claimed on June 9, 2006; KRW 28.5 million as claimed on June 9, 2006; KRW 6 as creditor; KRW 197,174,383 as claimed on June 27, 2006; and KRW 7 as creditor; and the provisional attachment registration was completed on June 2, 2006 as creditor.

(4) However, as Nonparty 1 did not repay the above loan obligation, the Plaintiff filed an application for voluntary auction at Cheongju District Court Decision 2006 Dang 10091 with respect to the instant real estate, and the said court rendered a decision to commence voluntary auction on December 22, 2006, and the entry registration was completed on December 26, 2006.

(5) Meanwhile, on February 12, 2008, at the time of the investigation into the above voluntary auction procedure, the Defendants stated that they exercise their lien on the instant real estate with the above construction remainder amount as secured claim, etc., and that they leased it to Nonparty 4, and the above court posted a notice on the list of goods sold stating the above purport.

[Reasons for Recognition]

The facts without dispute, Gap evidence 1 through Gap evidence 6, Eul evidence 1 through Eul evidence 11 (including each number), non-party 1 and 4 of the first instance trial, the fact-finding results on the loyalty market of the first instance court, the purport of the whole pleadings.

2. Summary of the parties' arguments

A. The plaintiff's assertion

The plaintiff is the cause of the claim of this case. ① The defendants exercise the right of retention by asserting that they occupy the real estate of this case even though they did not possess the real estate of this case or did not hold the claim for construction price against the non-party 1. ② Even if the defendant 10 had the above claim against the non-party 1, the above claim is not related to the real estate of this case, and thus, the right of retention is not established. ③ Even if the defendant has the claim for construction price against the non-party 1 and possessed the real estate of this case, the right of retention is not established. ③ Even if the defendant had the claim for construction price against the non-party 1 and occupied the real estate of this case without the consent from the non-party 1 or the non-party 2, which is the owner of the real estate of this case, the right of retention is not established and ④ since the defendants already occupied the real estate of this case and registered the provisional seizure in the name of the non-party 1 before November 18, 2006.

B. The defendants' assertion

As to this, the Defendants asserted that, from November 18, 2006 to November 1, 2006, the instant real estate was lawfully transferred from Nonparty 1, and that they exercise civil lien or commercial lien.

3. Determination

First, as recognized earlier, the Defendants legitimately occupied the instant real estate from Nonparty 1 on November 18, 2006, as a collateral for the construction remainder claim or the goods-price claim against Nonparty 1. Therefore, the Plaintiff’s above-mentioned ① and ③ claims are without merit.

However, in cases where a creditor acquires a lien by taking possession of the above real estate from an obligor after the seizure registration becomes effective upon entering the real estate owned by the obligor, the transfer of such possession goes against the prohibition of disposition of seizure under Articles 92(1) and 83(4) of the Civil Execution Act because it constitutes an act of disposal likely to reduce the exchange value of the object, and thus the creditor who possesses the real estate under the above circumstances cannot oppose the purchaser of the auction procedure on the ground of the above lien (Supreme Court Decision 2006Da22050 Decided August 25, 206). The above legal principles are the same as in cases where the creditor acquired a lien on the land of this case on the ground that the registration of provisional seizure or disposition of arrears with the same effect as the seizure takes effect upon entering the registration of provisional seizure or disposition of arrears on the land of this case on the ground that the creditor had already been registered in the name of Nonparty 6 on the ground that it had already been registered in the name of the creditor on September 23, 2005, as to the land of this case.

In addition, the lien holder cannot claim the successful bidder to pay the secured debt. However, since the lien holder may still refuse to deliver the real estate which is the object of the auction until the secured debt is repaid, the bidder of the real estate auction procedure may not easily deliver the object of auction from the lien holder after the successful bid, taking into account the fact that the objects of auction can not be delivered from the lien holder after the successful bid, and accordingly, the real estate for the auction purpose may be awarded at a lower price. Accordingly, the risk that the amount of the plaintiff's dividend decreases due to the successful bid is unstable in the legal status of the plaintiff as the mortgagee at the auction procedure, so the plaintiff's interest to remove the above apprehension cannot be considered as a simple, de facto, and there is a legal interest to seek the confirmation of this case from the plaintiff (Supreme Court Decision 2004Da32848 delivered on September 23, 2004).

4. Conclusion

Therefore, the plaintiff's claim of this case against the defendants is justified, and the judgment of the court of first instance is just and there is no ground to appeal by the defendants, and it is so dismissed as per Disposition.

[Attachment]

Judges Song Jin-chul (Presiding Judge)