(영문) 수원지방법원 2019.01.09 2018가단526445

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(영문) 수원지방법원 2019.01.09 2018가단526445

유체동산인도

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1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

Reasons

1. Basic facts

A. On April 5, 2017, the Plaintiff concluded a contract with B Co., Ltd. (hereinafter referred to as “B”) for the sale of the machinery listed in the separate sheet (hereinafter referred to as “the machinery of this case”) manufactured by the Plaintiff on KRW 42,00,000 (excluding value-added tax), with the payment of KRW 21,00,000 within 14 days from the date of the contract, the Plaintiff supplied the said machinery within 60 days from the contract and completed the trial run, and the remainder is paid within 30 days from the completion of the trial run, and the ownership of the instant machinery was agreed to be paid to the Plaintiff until the full payment is made.

(hereinafter referred to as the “instant contract”). B.

Under the instant contract, the Plaintiff received only down payment of KRW 23,100,000 (including value-added tax) and completed the trial operation by supplying the instant machinery to the Defendant on June 8, 2017, but the said B did not pay any balance.

C. In such a situation, the above B applied for commencement of rehabilitation procedures to the Suwon District Court, and the rehabilitation procedures are currently underway upon receipt of a decision to commence rehabilitation procedures as 2018 Gohap1006.

[Evidence: Evidence No. 1, 2, 3, and 4; All purports of oral argument]

2. The assertion and judgment

A. The Plaintiff’s assertion in the instant contract agreed that the ownership of the instant machinery was reserved to the Plaintiff until the total amount of the goods is paid. Since the said B did not pay any balance, the said machinery’s ownership is owned to the Plaintiff.

In such a situation, the rehabilitation procedure for the above B was commenced, and Article 70 of the Debtor Rehabilitation and Bankruptcy Act provides that "the commencement of rehabilitation procedures shall not affect the right to redeem any property that does not belong to the debtor from the debtor," so even if the rehabilitation procedure is in progress, the owner of the movable property may exercise the right to repurchase without any limitation.

Therefore, the above B is obligated to deliver the instant machinery to the Plaintiff as the owner.

B. The sale of the judgment movable property as collateral is the sale and delivery of the movable property.

유사 판례

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-대법원 2014. 4. 10. 선고 2013다61190 판결

-서울남부지방법원 2015.06.19 2015가합100052