208Gaz. 10696 Ccorporeal movables delivery

National Federation of Fisheries Cooperatives

Law Firm Loba

Attorney Kang Chang-ok

1. GG;

XX Co., Ltd.;

Law Firm Samyang, Counsel for the defendant-appellant

Attorney Kim Sung-hoon

Y Co., Ltd.

Law Firm Cheonghae, Counsel for the plaintiff-appellant

[Defendant-Appellant]

September 19, 2008

October 10, 2008

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendants of the Young-gu branch shall deliver to each plaintiff the articles listed in the attached Form (Omission).

1. Basic facts

The following facts may be acknowledged by adding up the whole purport of pleadings to the statements in Gap evidence 1, Gap evidence 4-1, 2, 3, Eul evidence 1 through 7, Eul evidence 11, Eul evidence 14 through 16, Eul evidence 17-1, 2, Eul, and Eul evidence 19:

A. On May 208, HH Fishery Co., Ltd. (hereinafter referred to as “H fishery”) imported the Z fishery products, such as freezing Daegu (hereinafter referred to as “instant goods, etc.”) from the Z as a Russian business, including the goods listed in the attached list (hereinafter referred to as “instant goods”). Accordingly, UUUU Shipping Co., Ltd. (hereinafter referred to as “UUUUU Shipping”) which is the carrier’s domestic agent of the instant goods, etc. entrusted the Plaintiff, who carried out a warehouse business on May 14, 2008, with the custody of the instant goods, etc., put the instant goods, etc. into the Mancheon-dong, Seo-gu, Busan (hereinafter referred to as “UUUU Shipping”), the warehouse of the Plaintiff.

B. On May 20, 2008, HH fishery prepared a certificate of goods to sell the goods, etc. of this case to the Intervenor’s assistant (hereinafter “the Intervenor”) and requested the Plaintiff to deliver the goods, etc. of this case to the Intervenor. On May 20, 2008, HH fishery again sold the goods, etc. to the Defendant Co., Ltd. (hereinafter “Defendant XX”) on May 20, 2008, and requested the Plaintiff to deliver the goods, etc. of this case to the Defendant XX on May 20, 2008. (d) On May 22, 2008, the Plaintiff delivered the goods, etc. of this case to the Defendant, K Shipping Co., Ltd. (hereinafter “K Shipping”), a freight forwarder, a freight forwarder, and the Plaintiff claimed that the goods of this case were stored in GG 2GG, hereinafter “Defendant 2G.”).

(a)request for extradition based on the exercise of the exercise of the right to claim the return;

The Plaintiff asserts that the owner of the instant goods is ZZ in possession of the bill of lading and cargo delivery order. The Plaintiff did not carry the bill of lading or cargo delivery order, and delivered the instant goods to the Defendant XX, who did not have the right to request the delivery of the instant goods. Thus, the Plaintiff asserted that the Defendant, the indirect possessor of the instant goods, and the Defendant GG, the direct possessor, seek the return of the instant goods by exercising the right to claim the return of the said goods.

However, there is no assertion or proof against the plaintiff as to the right of subrogation to exercise the above subrogation right. Thus, the plaintiff's above assertion is without reason to examine the remainder of the issue.

(b)request for extradition based on the claim for return of possession;

The Plaintiff asserts to the effect that Defendant XX did not carry a bill of lading or a cargo delivery order but received the delivery of the instant goods from the Plaintiff and committed a tort of avoiding the Plaintiff’s possession of the instant goods, and that the said Defendant is obligated to return the instant goods to the Plaintiff. Defendant GG also has the duty to deliver the instant goods to the Plaintiff, who exercises the right to claim the delivery of the instant goods held by Defendant XX against the Defendant GG in order to preserve the right to claim the return of the said possessed goods.

On the other hand, the right to claim for the return of possession under Article 246 of the Civil Act is recognized in cases where the possessor has been deprived of possession by taking a factual control without resorting to his/her own intent, and it is difficult to see that there was a deprivation of possession, and there is no other evidence to acknowledge it solely on the basis of the aforementioned assertion. Rather, according to the statement of evidence Nos. 19, it is recognized that KR Shipping submitted a delivery order issued by the said Defendant upon request for shipment from Defendant XX to the Plaintiff, and received a shipment slip from the said Defendant, and received the shipment slip from the said Plaintiff, and received it in a peaceful and openly delivered the instant goods

Since the Plaintiff cannot be deemed to have the right to claim the return of possession of the instant article against Defendant XX, the Plaintiff’s assertion that is premised on the existence of such right to claim the return of possession of the instant article is without merit.

(c)request for delivery based on a claim for return of unjust enrichment by repayment of debt;

1) The Plaintiff, despite the absence of the duty to deliver the instant goods to Defendant XX, performed its duty by mistake. As such, the Defendant XX, who acquired the instant goods without any legal ground, is obligated to return them to the Plaintiff as unjust enrichment. Defendant GG has the duty to deliver the instant goods to the Plaintiff in subrogation of the right to claim the delivery of the instant goods against Defendant XX.

The fact that the Plaintiff, a warehouse operator, entered the instant goods, etc. imported by HU Shipping, at the request of UUU Shipping, a domestic agent of the relevant maritime carrier, and entered the Plaintiff into the Sea Distribution Center. As seen earlier, the Plaintiff was not in possession of the bill of lading or delivery order, and the Plaintiff was ordered by the carrier of the instant goods, etc. to deliver the instant goods, etc. from HH fishery and the Intervenor on May 222, 2008, although the Plaintiff received a successive request for delivery of the instant goods, etc. from the carrier of the instant goods, etc., and delivered the instant goods to the Defendant XX on May 22, 2008, without any dispute between the parties. Thus, the Plaintiff did not have the duty to deliver the instant goods to the Defendant XX, which constitutes a non-payment of debt, and barring any special circumstance, Defendant XX is obligated to return the instant goods to the Plaintiff.

2) As to this, the Defendants asserted that the Plaintiff did not have the duty to deliver the instant goods, and that they could not claim for the return of the said goods to the Defendant XX.

On the other hand, a warehouse operator entrusted with the custody of the goods by a carrier shall deliver the goods to the holder in exchange for a bill of lading or a written order for delivery of the goods, and shall not deliver the goods to a person who fails to carry a bill of lading or written order for delivery of the goods, unless the carrier has given instructions. In addition, according to the evidence No. 3, the Plaintiff prepared and delivered a written statement that “IU Shipping, the domestic agent of the carrier, made a promise not to deliver the goods, etc. without a written order for delivery” on May 13, 2008, which is the day immediately preceding the receipt of the goods, etc. of this case. However, solely on the ground that the Plaintiff, a warehouse operator, bears the above legal interpretation and duties based on each written order, it is insufficient to presume that the Plaintiff was actively aware that at the time of delivery of the goods of this case to the Defendant, the Plaintiff had no obligation to deliver them, and there is no other evidence to acknowledge this otherwise.

Rather, comprehensively taking account of the overall purport of the arguments in evidence Nos. 7 and 11 and 19, the plaintiff was requested by the intervenor to deliver the goods of this case to the defendant XX, and on May 22, 2008, the plaintiff could not deliver the goods of this case in advance to the defendant XX, but the remaining goods intended to deliver the goods of this case on the same day, and refused to deliver them without the cargo delivery order. The plaintiff was found to have received the decision of acceptance on May 30, 2008 by filing an application against the defendant GG for the prohibition of the transfer of corporeal movables in relation to the goods of this case. In light of these circumstances, it is reasonable to deem that the plaintiff delivered the goods of this case by mistake without knowing that the plaintiff did not have the duty of delivery.

Therefore, the defendants' defense is without merit.

3) In other words, the Defendants asserted that they cannot respond to the Plaintiff’s claim since Defendant XX acquired the instant goods in good faith.

The following facts are acknowledged: (a) the cargo of this case, etc. was sold from HH fishery to Defendant XX through the Intervenor, and accordingly, the preparation and delivery of the certificate of goods confirming its sale and purchase and the request for delivery to the Plaintiff was made in sequential order; and (b) Defendant XX received the cargo of this case from the Plaintiff in peace and performance from the Plaintiff; and (c) in light of the fact that the Plaintiff, who was obligated not to deliver the cargo of this case to a person who was not in possession of the bill of lading or order of delivery without the carrier’s instruction, delivered the cargo of this case to the Defendant XX in peace and public performance without any objection according to the request of HH fishery and the Intervenor’s successive delivery request, the above Defendant believed that HH fishery and the Intervenor had the right to the goods of this case, and there was no negligence in trust. Thus, Defendant XX acquired the goods of this case in good faith.

Therefore, the defendant's defense is justified.

3. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is dismissed as it is without merit. It is so decided as per Disposition.

The chief judge, chief judge and associate judge

Judges Geman-type

Judge fixed-ranking