[1] In the case of applying for an order to deliver real estate, whether only the fact that the buyer has occupied the other party can be explained (affirmative), and whether the other party who asserts that the possession was based on the title against the buyer should vindicate (affirmative)

[2] Whether a person who acquired a lien by transfer of possession after the registration of the decision on commencing auction on real estate was made may claim the lien in the auction procedure (negative)

[3] The meaning of "other similar relationship" under Article 195 of the Civil Code, which provides for the possession assistant

[1] Article 136(1) of the Civil Execution Act / [2] Articles 320 and 324(2) of the Civil Act; Articles 83(4), 91(5), 92(1), 94, and 136(1) of the Civil Execution Act / [3] Articles 192 and 195 of the Civil Act

[2] Supreme Court Decision 2002Ma3516 Decided November 27, 2002 (Gong2003Sang, 220), Supreme Court Decision 2003Da56694 Decided February 13, 2004, Supreme Court Decision 2005Da22688 Decided August 19, 2005 (Gong2005Ha, 1503) / [3] Supreme Court Decision 2013Da84971 Decided January 29, 2015

Re-appellant

Seoul Southern District Court Order 2015Ra158 dated November 24, 2015

The order of the court below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

The grounds of reappeal are examined.

1. In the case of applying for an order to deliver the immovables, the purchaser shall vindicate only the fact of possession of the other party, and if the possession is based on the title enabling him to oppose the successful bidder, the other party asserting it shall vindicate;

In addition, any person who acquired a lien by transfer after the registration of the decision on commencement of auction on a certain real estate cannot claim his/her lien in the auction procedure (see, e.g., Supreme Court Decision 2005Da22688, Aug. 19, 2005). Although the possession of the lien holder, which is the requirement for the establishment of the lien, is neither direct nor indirect possession, it is irrelevant, but the lien holder does not have the right to lease the object to another person unless the debtor or the owner gives consent (see, e.g., Article 324(2) of the Civil Act). Since such lease by the lien holder infringes on the owner’s disposal right, it cannot be viewed that the possession of the leased object by the lease by the lien holder without the owner’s consent is based on the “right to oppose the purchaser” as provided for in the proviso of Article 136(1) of the Civil Execution Act (see, e.g., Supreme Court Order 2002Da3265364, Mar. 26, 2016).

On the other hand, an assistant in possession is a person who actually controls an article under another person’s instruction based on relationship such as household affairs, business and other similar relations (Article 195 of the Civil Act) and is distinguishable from the possessor who actually controls the article without another person’s instruction (Article 192 of the Civil Act). Here, “other similar relationship” with respect to an assistant in possession refers to the relationship with which one is instructed by another and is deemed to assist in possession under the social concept (see, e.g., Supreme Court Decision 2013Da84971, Jan. 29, 2015).

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. As Seoul Southern District Court Decision 201Ma10530, the National Bank Co., Ltd. entrusted with the business of the Korea Housing Finance Corporation (hereinafter “instant real estate”) filed an application for voluntary auction on the real estate listed in the separate sheet as indicated in the judgment of the court below (hereinafter “instant real estate”), and received the decision to commence auction on May 7, 2014. On May 11, 2014, the registration of the decision to commence auction on the instant real estate was completed (hereinafter “instant auction”).

B. On January 5, 2012, the support industry for the instant real estate (hereinafter “support industry”) asserted that the instant real estate was occupied in order to exercise the right of retention on May 27, 2014, as the construction of the instant real estate was subcontracted for construction of the entire apartment to which the instant real estate belongs and completed construction on July 31, 2012 by Cheongho Construction Co., Ltd. (hereinafter “Cheongho Construction”), and the construction was not paid the construction cost of KRW 145,095,000. On November 26, 2014, the Respondent reported the right of retention on May 27, 2014, submitted an amendment to the effect that he/she occupied the instant real estate as an agent (Possession) of the support industry.

C. (1) At the instant auction procedure, the re-appellant received a decision to permit the sale of the instant real estate on March 11, 2015, and paid the sales price on April 15, 2015. On the same day, the re-appellant filed an application against the respondent for an order to deliver the instant real estate.

(2) As to this, the respondent asserts that the support industry occupies the instant real estate and exercises a lien, and that the respondent occupies the instant real estate in the position of the possession assistant of the support industry from around December 2012 to the Nonparty who was the auditor of the support industry, and that the application for the order of delivery of the instant real estate should be dismissed.

D. On December 11, 2012, the respondent was the mother of the Nonparty, who was the auditor of the support industry, and filed a move-in report on the instant real estate on April 30, 2015, and the Nonparty was a person living together with the instant real estate.

However, the investigation report on the current status of the instant real estate prepared on May 29, 2014 at the instant auction procedure was entered into by the respondent as a tenant on December 11, 2012, and continued to reside until May 20, 2014, which is the point of time of the investigation into the current status of the instant real estate. The rent is KRW 500,000 per month, and the fixed date on the lease agreement is entered as an unregistered merchant.

E. Meanwhile, on April 22, 2015, separately from the instant application, the re-appellant filed an application for a real estate delivery order against the support industry on April 22, 2015, Seoul Southern District Court 2015No. 125, and the first instance court dismissed the said application on June 2, 2015, but the appellate court (Seoul Southern District Court 2015Ra157) revoked the first instance decision and issued an order for delivery to the support industry on the grounds that it is difficult to deem that the respondent had occupied the instant real estate as the possession assistant of the support industry prior to the registration of the decision on commencing auction on the instant real estate, on the grounds that it is difficult to deem that the respondent had occupied the instant real estate as the possession assistant of the support industry prior to the registration of the decision on commencing auction on the instant real estate, and the reappeal of the support industry (Supreme Court 2015Ma12122, Nov. 20,

3. We examine these facts in light of the legal principles as seen earlier.

In order to recognize that the support industry prior to the registration of the decision on commencing the instant auction prior to the registration of the instant decision on commencing the auction as the lien holder, as alleged by the respondent, prior to the possession of the instant real estate, the respondent should be deemed to have managed the instant real estate for

However, on December 11, 2012, the respondent completed the move-in report of the instant real estate and used the instant real estate as of May 20, 2014, which was at the time of the said investigation. However, it is insufficient to recognize that the respondent used and managed the instant real estate as an occupation assistant of the support industry prior to the registration of the decision on commencing auction of the instant case. However, it is insufficient to recognize that the respondent had been using and managing the instant real estate as an occupation assistant of the support industry. Although the respondent is the Nonparty’s mother of the Nonparty in the support industry, and the Nonparty is a person living together with the respondent in the instant real estate after the re-appellant’s acquisition of the instant real estate ownership of the instant real estate

Rather, since the respondent has used the real estate of this case before the registration of the decision on commencing auction of this case as a tenant, it can be deemed that the respondent has occupied the real estate of this case as a tenant independently from the support industry. Furthermore, even if the respondent leased the real estate of this case from the support industry claiming the lien holder, barring any special circumstance, such as obtaining the consent from the owner, the validity of the lease cannot be asserted to the owner. Thus, the possession of the respondent cannot be deemed to be based on a legitimate title that can oppose the re-appellant, the buyer as stipulated in the proviso of Article 136(1) of the Civil Execution Act.

4. Nevertheless, the lower court erred by misapprehending that the respondent occupied the instant real estate as an occupation assistant of the support industry prior to the registration of the instant order to commence the auction on the ground of the circumstances indicated in its reasoning, and on that premise, determined that the lien of the support industry asserted by the respondent was clearly explained, and dismissed the re-appellant’s application for the order to deliver the instant real estate.

Therefore, in so determining, the court below erred by misapprehending the legal principles on the possession of lien holder and possession assistant, which are the requirements for establishment of lien, thereby adversely affecting the conclusion of the judgment. The ground of reappeal assigning this error is with merit.

5. Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)