Plaintiff

Defendant (Law Firm Republic of Korea, Attorneys Kim Ho-nam, Counsel for defendant-appellant)

September 21, 2011

Busan District Court Decision 2010Kadan60055 Decided February 22, 2011

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. In the first instance court, the defendant shall deliver to the plaintiff the real estate listed in the separate sheet, and the defendant shall be given the plaintiff the remaining secured claims after deducting the amount equivalent to the rent from October 7, 2004 to May 6, 2010 each month from the plaintiff to the amount equivalent to the rent of KRW 775,000, and simultaneously deliver the above real estate to the plaintiff.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is that “ May 6, 2004.” under the first instance court’s first instance court’s first instance court’s second instance judgment’s second instance judgment’s second instance judgment’s second instance judgment’s second instance judgment’s second instance judgment’s second instance judgment’s second instance judgment’s second instance judgment’s “ May 6, 2010.” In addition to the addition of the judgment of the Plaintiff’s second instance court’s second instance judgment’s second instance judgment’

2. The addition;

A. The plaintiff's assertion

The plaintiff asserts that ① the defendant supplied cement and sand at the construction site of the real estate of this case only and did not directly participate in the construction of the real estate of this case. Thus, the defendant's claim which is merely a claim for construction material price cannot be a secured claim of this case because it has no relevance to the real estate of this case, and ② even if the above claim for construction material price price is a secured claim, the due date of payment of the above claim is November 26, 2005 (the plaintiff is " November 6, 2005" but it appears that it was an erroneous entry of " November 26, 2005" which was commenced by the defendant in possession of the real estate of this case, and thus, the defendant did not arrive at the auction procedure of this case and thus the above claim cannot be asserted against the plaintiff.

B. Determination

First, as to the Plaintiff’s assertion, “claim arising in relation to the subject matter” stipulated in Article 320(1) of the Civil Act includes not only cases where a claim has arisen from the subject matter itself, but also cases where a claim has arisen from the same legal relationship or factual basis as the right to claim the return of the subject matter, unless it is contrary to the principle of fairness, which is the original purport of the lien system. As long as the Defendant supplied cement and sand, which are materials necessary for the new construction of the subject matter, and the above construction materials are used in the construction and are consistent with the constituent elements of the subject matter, the above construction material price claim is recognized as having relation to the subject real estate, and thus, it constitutes the secured claim of the lien for the subject

Next, if the plaintiff's above argument (2) is gathered with the purport of the whole pleadings in the statement No. 4, the defendant's provision of building materials, such as cement and sand, at the construction site of this case from April 1, 2003 to July 2004 in accordance with the agreement with Hanul-gu, it shall be recognized that the due date for the defendant's payment of the above construction material price claim arrives around August 2004 after the defendant completed the supply of construction material. Meanwhile, according to the evidence No. 4, the plaintiff's claim that the above construction material price claim is due date of November 26, 2005, which is alleged by the plaintiff as the due date for the above construction material price claim by the defendant against Eul-do and Hanul-do (this court 2005Gahap20708) is the date following the last copy of the complaint claim filed by the defendant as the due date for delay damages. Thus, the plaintiff's above assertion is not reasonable.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges higher-ranking (Presiding Judge) Kim Jong-sung