2020Na41860 Of buildings (delivery)

A Stock Company

Law Firm Shin (Law Firm Shin, Counsel for defendant-appellant)

Attorney Cho Jae-ho

E

Seoul Western District Court Decision 2019Da240608 Decided January 10, 2020

July 9, 2020

July 30, 2020

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 deliver to the plaintiff the real estate listed in the attached list (hereinafter referred to as "the real estate of this case").

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. On April 14, 2017, F Co., Ltd. (hereinafter referred to as “F”) entered into a loan transaction agreement with G Cooperatives with a total of KRW 1.488 billion on a loan limit, which secured the instant real estate as a preferential beneficiary of G Cooperatives, and completed the registration of ownership transfer on the ground of trust as Seoul Western District Court’s registration No. 19090, Apr. 14, 2017, which received on April 14, 2017.

B. The following provisions are stipulated in the real estate security trust agreement and special agreement regarding the instant real estate concluded between the Plaintiff, F and G Cooperatives:

Article 10 (Preservation, Management, etc. of Trust Real Estate) ① A truster shall, in principle, continue to use the trusted real estate in fact and bear all the expenses required for actual management, such as the maintenance and repair, etc. of the trusted real estate without the prior consent of the trustee. ③ If the trustee does not give consent, the truster shall not limit the ownership of the trusted real estate or reduce the value thereof by means of the creation of the right, such as the lease, or modification of the current state thereof, etc. (3) In any of the following cases, even if the period of the trust falls under any of the following subparagraphs, the truster may dispose of the trusted real estate upon the request of the beneficiary.

C. Until May 20, 2019, F did not pay interest under the said loan transaction agreement to G association for 66 days. Accordingly, the Plaintiff commenced the realization procedure of the instant real estate pursuant to Article 19(1) of the said Security Trust Contract by publicly announcing a public auction on the instant real estate around April 17, 2020 (the Plaintiff commenced the public auction procedure as above but failed to sell the real estate on seven occasions, and the public auction procedure was temporarily interrupted at the request of G association on May 18, 2020).

D. The Defendant completed a move-in report on the instant real estate on June 17, 2019, based on an occupancy delegation agreement concluded with F on June 2019 (hereinafter “instant occupancy delegation agreement”) and moved into the said real estate on June 17, 2019. The Plaintiff and G Cooperatives do not have consented to the said occupancy delegation agreement concluded between F and the Defendant.

【Ground of recognition】 Evidence Nos. 1-1 through 3, 2-3, 3-4, 5-3, 6 through 9, 1-2, and the purport of the whole pleadings

2. Determination

A. Judgment on the ground of the plaintiff's claim

According to the above facts, the defendant is obligated to deliver the above real estate to the plaintiff, who is a legitimate owner of the above real estate, barring special circumstances.

B. Judgment on the defendant's argument

The defendant asserts that since the defendant is merely a person who independently occupies the real estate of this case, it cannot be viewed as a person who independently occupies the real estate of this case, the defendant cannot be the other party to the request for delivery of the building of this case.

Article 195 of the Civil Act refers to a person who is not recognized as an independent occupant by exercising de facto control over an object under the instruction of another person through relationship of household affairs, business or other similar relations. Thus, a person who possesses an object independently through superficies, chonsegwon, pledge right, loan for use, lease, deposit, or other combination of possession cannot be deemed as an independent assistant in possession (see, e.g., Supreme Court Decision 2006Da63174, Nov. 15, 2007).

In light of the following circumstances as revealed in Eul evidence Nos. 1 through 3 and the purport of the entire pleadings, ① the defendant is indicated as F's assistant in possession under the delegation agreement of this case, but the defendant paid F's deposit of KRW 10 million to F and was entrusted with possession rights. The defendant paid KRW 80,000 per month as management expenses. Accordingly, the defendant paid KRW 10,000 to F as well as June 5 and June 17, 2019. ② Article 6 of the delegation agreement of this case provides that the defendant acquired the real estate of this case as sale or public sale without demanding the return of the above possession deposit, ③ since the defendant was aware that the possession of the real estate of this case was restricted in possession of the real estate of this case, it cannot be viewed as the defendant's possession of the real estate of this case to be changed to F's possession of the real estate of this case or to be the defendant's possession of the real estate of this case as an independent agent in possession of the above real estate of this case.

3. Conclusion

If so, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.

Judge Lee Jae-hee

Judges Kim Jong-hoon

Judges Kim Jong-young

A person shall be appointed.