[1] The meaning of and criteria for determining the possession of an article

[2] Meaning of Article 204(1) of the Civil Act’s meaning of “when a possessor has been deprived of his possession,” and whether it constitutes “the deprivation of possession” even in a case where a possessor has deprived of his possession due to an unlawful compulsory execution (affirmative)

[3] Whether the possession is based on the principal right (negative) in order to claim the return of the possession under Article 204(1) of the Civil Act (negative)

[1] Article 192 of the Civil Act / [2] Article 204 (1) of the Civil Act / [3] Article 204 (1) of the Civil Act

[1] Supreme Court Decision 95Da8713 Decided August 23, 1996 (Gong1996Ha, 2809), Supreme Court Decision 2009Da39530 Decided September 24, 2009 (Gong2009Ha, 1754), Supreme Court Decision 95Da8713 Decided August 23, 1996 (Gong201Da74949 Decided January 27, 2012) / [2] Supreme Court Decision 86Da1683 Decided June 9, 1987 (Gong1987, 1133)

Dobongcheon-3 District Housing Improvement Development Cooperatives (Law Firm Seocheon-ro, Attorneys Yu-min et al., Counsel for the plaintiff-appellant)

Defendant 1 and two others (Law Firm Han, Attorneys Yellow-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na87777 decided December 15, 2009

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. As to the third ground for appeal

A. The possession of an object refers to an objective relationship that can be deemed to have a factual control over a person under the social concept. The factual control referred to in this context does not necessarily mean a mere physical and real control over an object, but is determined in conformity with the social concept by comprehensively taking into account the time and spatial relationship with the object, the principal right relationship with the object, the possibility of exclusion from control of others, etc. (see, e.g., Supreme Court Decisions 95Da8713, Aug. 23, 1996; 201Da74949, Jan. 27, 2012).

According to the reasoning of the judgment of the court below, the court below, citing the reasoning of the judgment of the court of first instance, acknowledged the fact that the plaintiff set up a warning on September 20, 2003 that the apartment entrance of this case was set aside and kept the key thereof in order to secure the claim, etc. of the money collectible in relation to the sale of the apartment of this case, and on April 18, 2008, he exercised the right of retention on the apartment entrance of this case. The court below determined that the plaintiff acquired the apartment of this case by de facto controlling the apartment of this case in accordance

In light of the above legal principles and records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles on the acquisition of possession or misconception of facts beyond the limit of the free evaluation of evidence

B. Article 204(1) of the Civil Act provides that “When a possessor has been deprived of his possession, he may claim the return of such article and the compensation for damages.” Here, the term “when the possessor has been deprived of his possession” refers to a case where the possessor has taken a factual control without his intention, and it constitutes a deprivation of possession even if the possessor has taken the possession by unlawful compulsory execution conducted without his title against the possessor (see Supreme Court Decision 86Meu1683, Jun. 9, 1987).

According to the reasoning of the judgment below, the court below acknowledged the fact that the Defendants did not file an application for the delivery order with the Plaintiff, the occupant of the apartment of this case, but applied for the delivery order with the court for the non-party 1 and 2, who is the owner of the apartment of this case, and obtained the possession of the apartment of this case through its execution. The court below determined that the delivery order for the apartment of this case, the non-party 1 and the non-party 2, as the respondent, was invalid against the plaintiff. Thus, according to the execution of the above delivery order, the plaintiff illegally deprived

In light of the above legal principles and the records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of facts beyond the bounds of the principle of free evaluation of evidence or by misapprehending the legal principles as to the deprivation

2. As to the grounds of appeal Nos. 1 and 2

A. The claim for return of possession of the object stipulated in Article 204(1) of the Civil Act is sufficient if the plaintiff asserts and proves that he/she occupied the object and deprived of it by the defendant, and there is no need to assert and prove that the possession of the object is based on the principal right.

B. According to the reasoning of the judgment below, the plaintiff asserted that he was deprived of possession of the apartment of this case by the defendants as the main claim of this case, and sought the restoration of possession thereof, the court below acknowledged that the plaintiff acquired the right of retention of the apartment of this case by citing the reasoning of the judgment of the court of first instance, and that the secured amount of the right of retention is KRW 438,808,049, and that the plaintiff was deprived of possession while the plaintiff occupied the apartment of this case, and that the plaintiff was deprived of possession. The defendants were obligated to deliver the real estate of this case to the plaintiff pursuant to Article 204 (1) of the Civil Code, and ordered the delivery in the judgment of the court

C. In light of the above legal principles and records, the court below is just to order the defendants to deliver the apartment of this case by accepting the plaintiff's main claim of this case. Whether the plaintiff's right of retention is acquired for the apartment of this case, the scope of the secured claim of this right, and whether the right of retention is renounced or extinguished upon the plaintiff's request for auction. Thus, even if the court below omitted the judgment or partly erred in its judgment, it cannot affect the conclusion of the judgment. Accordingly, the ground of appeal on this part is not accepted without further review.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)