[1] The case holding that Gap's seeking confirmation of non-existence of right of retention against Eul separately from seeking delivery of a store under the circumstance that Eul corporation occupies Eul corporation's store, is unlawful since there is no benefit of confirmation

[2] Whether a person who acquired a civil lien prior to the registration of the decision on commencing auction as to the establishment of a mortgage, the registration of provisional seizure, or the registration of the seizure for arrears, may oppose the successful bidder in the auction procedure (affirmative)

[3] Whether a lien acquired after the establishment of a mortgage ceases to exist due to sale in an auction procedure (negative in principle)

[1] Article 320 of the Civil Act, Article 250 of the Civil Procedure Act / [2] Article 320 of the Civil Act, Articles 83(4), 91(5), and 92(1) of the Civil Execution Act / [3] Article 91(3) and (5) of the Civil Execution Act

[2] [3] Supreme Court Decision 2008Da70763 Decided January 15, 2009 (Gong2009Sang, 158) Supreme Court en banc Decision 2009Da6036 Decided March 20, 2014 (Gong2014Sang, 897) / [2] Supreme Court Decision 2005Da22688 Decided August 19, 2005 (Gong2005Ha, 1503)

Plaintiff

Comprehensive Construction (Attorney Lee Jae-sik, Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na111212 decided August 25, 2010

1. The part of the judgment below regarding the claim for confirmation of existence of lien shall be reversed, and this part of the judgment of the first instance shall be revoked, and the lawsuit concerning this part shall be dismissed.

2. The plaintiff's remaining appeal is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. As to the claim for confirmation of existence of the lien

Before determining the grounds of appeal, this part of the lawsuit is examined ex officio.

A lawsuit for confirmation is recognized where it is the most effective and appropriate means to eliminate the Plaintiff’s legal status’s anxiety and risk (see Supreme Court Decisions 2005Da60239, Mar. 9, 2006; 2005Da41153, Jul. 10, 2008; 2005Da41153, Jul. 10, 2008, etc.). If the Defendant occupies the instant store as in the instant case, seeking delivery of the instant store is a direct means to eliminate the Plaintiff’s ownership anxiety and risk effectively, and thus, seeking confirmation of the absence of lien on the instant store is unlawful as there is no benefit of confirmation.

Nevertheless, the court below deemed this part of the lawsuit as legitimate, and dismissed the plaintiff's claim by examining it in the merits. The court below erred in the misapprehension of legal principles as to the interest in confirmation, thereby making a judgment.

2. As to the claim for delivery of the store

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

A. As to the omission of judgment

(1) A person who acquired a civil lien only after the registration of the decision on commencing auction was made on a certain real estate, cannot claim his/her lien against the purchaser of the auction procedure (see, e.g., Supreme Court en banc Decision 2005Da22688, Aug. 19, 2005). These legal principles aim at ensuring legal stability in the auction procedure. Thus, even if a person who had already acquired a civil lien on the real estate before the registration of the decision on commencing auction was made first of the registration of the establishment of a mortgage, the registration of a provisional attachment, or the registration of the seizure of a disposition on default prior to the acquisition, he/she may oppose the purchaser of the auction procedure as his/her own lien (see, e.g., Supreme Court en banc Decision 2009Da60336

(2) According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, ① the provisional attachment registration of Nonparty 2 on April 1, 2005 with respect to the instant store owned by Nonparty 1 was completed on July 27, 2005, the provisional attachment registration of the Republic of Korea (U.S.) was completed on July 27, 2005, and the attachment registration of the disposition on default with respect to the Republic of Korea on December 6, 2005 was completed on September 6, 2005, ② Nonparty 1 transferred possession of the instant store to the Defendant who is the creditor of the construction cost related to the instant store on September 14, 2006, ③ the Defendant acquired the right of retention upon the application of the National Agricultural Cooperative Federation, which was initiated on December 15, 2006 and registered on December 19, 2006, ④ the Plaintiff acquired the ownership by paying the purchase price of the instant store on July 16, 2008.

Examining these facts in light of the legal principles as seen earlier, even if Nonparty 1 transferred the possession of the instant store to the Defendant under the registration of provisional seizure and the registration of the seizure of delinquent dispositions, insofar as the transfer of possession was made before the registration of the decision on commencement of auction, the Defendant may exercise the right of retention against the Plaintiff who purchased the instant store in the above auction procedure.

Therefore, the court below erred by failing to make any decision as to the plaintiff's assertion that the defendant cannot exercise the right of retention against the plaintiff who purchased the store of this case in the auction procedure, but the decision of the court below that the defendant can exercise the right of retention against the plaintiff is just, and there was no error in the misapprehension of judgment that affected the conclusion of the judgment.

(3) The lower court erred by failing to render any judgment as to the Plaintiff’s assertion that the Defendant’s instant store’s exercise of the right of retention goes against the principle of good faith.

However, according to the records, since the plaintiff's assertion that the defendant's right of retention cannot be deemed to go against the principle of good faith, the conclusion of the court below that the defendant can exercise the right of retention against the store of this case is just, and there is no error of law that affected the

B. As to the assertion of misapprehension of legal principles as to the effect of mortgage and lien

Unlike the provisions of Article 91(3) of the Civil Execution Act, Article 91(3) of the same Act provides that "a superficies, easement, right to lease on a deposit basis, or registered right to lease shall be extinguished by sale if it cannot be asserted against a mortgage, seized claim, or provisional seizure claim," and Article 91(5) of the same Act provides that "the buyer shall be liable to the lien holder for the repayment of the claim secured by the lien." Thus, barring any special circumstance, a right of retention shall not be extinguished by sale in the auction procedure, regardless of the time of its establishment, and shall not be deemed as the time of its establishment after the creation of a mortgage (see, e.g., Supreme Court Decision 2008Da70763, Jan

In the same purport, the court below is just in holding that even if the defendant acquired the right of retention on September 14, 2006, which was after January 5, 2005 when the National Agricultural Cooperative Federation’s right of collateral security established for the store of this case, by transferring the possession of the store of this case from Nonparty 1, he can claim the right of retention against the plaintiff who is the purchaser in the auction procedure, and there is no error of misapprehending the legal principles as to the effect of mortgage and lien.

C. As to the assertion of misapprehension of legal principles as to waiver of lien

The court below held that the defendant's act of having the non-party 1 dispose of a large number of the stores of this case in the situation where the defendant received only KRW 318 million as construction price from the non-party 1 on January 5, 2005, cannot be deemed to have renounced the right to retention for the stores of this case. In light of the reasoning of the judgment below and the records, the above judgment of the court below is just and it is justified and there is no error in the misapprehension of the legal principles as to the waiver of the right to retention.

D. As to the assertion of violation of the rules of evidence

The allegation in this part of the grounds of appeal is merely an error in the selection of evidence and fact-finding which belong to the exclusive jurisdiction of the lower court, and thus cannot be a legitimate ground of appeal.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the claim for confirmation of existence of a lien is reversed without examining the grounds of appeal, and this part is sufficient to be directly tried by the Supreme Court. Accordingly, this part of the judgment of the court of first instance is revoked, and the lawsuit is dismissed, and the remainder of the appeal by the plaintiff is dismissed, and the total costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)