(영문) 대전지방법원 2015.1.30. 선고 2014나104238 판결

The judgment of the court of first instance is revoked. Among the buildings listed in the attached Table 1.1., the right of retention is confirmed as secured claim for the construction cost claim of KRW 34,530,000 against the Plaintiff with respect to the portion (c) of 9,10,11,12,13, 14, 15, and 9 indicated in the attached Table 3. Of the buildings listed in the attached Table 1., the portion (a) not more than 45 square meters (a) connected each point in the attached Table 1.1.2, 3, 4, and 1.2, among the buildings listed in the attached Table 1.1., and the portion (a) not more than 45 square meters (a) connected each point in the attached Table 3.2.5,6,7,8, and 5,000 among the buildings listed in the attached Table 2.

Reasons

1. Basic facts

A. Each of the buildings listed in the separate sheet (hereinafter “each of the buildings of this case”) was owned by Nonparty D. However, upon application for voluntary auction by Korea Asset Management Corporation, the decision to voluntarily commence auction was rendered on March 26, 2012, and the entry registration was completed on the same day.

B. On October 2, 2012, the Plaintiff: (a) received a supply of construction cost of KRW 445 million for five buildings, including each of the instant buildings, from D and ASEAN; and (b) filed a lien on October 2, 2012 with the said auction court as the secured claim and filed a lien on the construction cost of KRW 380 million for each of the instant buildings.

C. In the above auction procedure, the Defendant received the successful bid of each of the instant buildings and acquired ownership by paying the price, and then filed an application for an order of delivery of real estate against the Plaintiff and D as to (a) and (c), and the said application was accepted (Seoul District Court Seosan Branch E).

[Ground of recognition] The fact that there has been no dispute, Gap 3, 11, 12, Eul 3 (including each number, if any; hereinafter the same shall apply), the purport of the whole pleadings and arguments

2. Determination as to the claim for confirmation of lien in (a) and (c) parts

A. The plaintiff's assertion

The Plaintiff entered into a construction contract on each of the instant buildings, etc., and completed the construction. The Plaintiff was paid only part of the construction cost, and the remainder of the construction cost was not paid KRW 380,000,000,000 from D and F, and agreed to lease or lease part of each of the instant buildings to others with the right to lease and appropriate the lease revenue to the remainder of the construction cost. Accordingly, the Plaintiff entered into a lease contract on January 25, 2005 between D and D, and F with the content that the Plaintiff leases all of the buildings listed in the separate sheet 3, and the (C) portion was used directly for the Plaintiff’s office from that time. In lieu of returning the remainder of the buildings listed in the separate sheet 3, the two partitions were leased to Nonparty G, and instead, the two partitions were leased to Nonparty 1.

(A) The part was directly used by the Plaintiff as a warehouse for the storage of the said goods. Since the Plaintiff received additional payment of the construction cost of KRW 34.7 million from the Defendant, the Plaintiff has a lien on the said part as to the said part, as it directly occupied the remainder of the construction cost claim of KRW 345.3 million, which was not recovered from the Defendant, with the preserved claim.

B. Determination

1) The requirements for establishing a lien under Article 320 of the Civil Act and possession, which is the requirements for existence of a lien, refers to an objective relationship in which an article appears to belong to the factual control of that person under the common sense of society. At this time, factual control is not necessarily limited to physical and practical control over an article, but should be determined in accordance with the concept of society by taking into account the time and spatial relationship with the article, the relationship with the person in question, the possibility of exclusion from control of others, etc. (see, e.g., Supreme Court Decisions 95Da8713, Aug. 23, 1996; 2009Da39530, Sept. 24, 2009).

In addition, if the debtor acquires a lien by transferring the possession of the construction cost to the creditor of the construction cost after the completion of the registration of the decision to commence the auction on the real estate owned by the debtor after the seizure became effective, such possession constitutes a disposal act likely to reduce the exchange value of the object, and thus, it goes against the prohibition of the disposal of the object, and thus, the possessor is not entitled to oppose against the purchaser of the auction procedure on such real estate on the ground of the lien (see, e.g., Supreme Court Decision 2005Da22688, Aug. 19, 2005).

2) We examine the following circumstances, including the statement No. 1, Eul evidence No. 1, witness F of the court of first instance, and witness testimony of the court of first instance, and the overall purport of arguments. In other words, according to the report on the survey of real estate status prepared on April 19, 2012 by the judicial assistant officer of the Daejeon District Court, the plaintiff does not possess the portion (a) and (c) in the auction procedure of the real estate rent C with Seosan branch of the Daejeon District Court, and (c) the portion (c) is asserted that the plaintiff possessed, but the signboard of the J corporation run by F is attributable to the plaintiff, while F was used as the office of the J corporation, and the plaintiff was not permanently stationed, and the part (a) was leased to E, which was brought by the plaintiff, and there was no evidence to acknowledge that the part (b) was an exercise of lien before the plaintiff when each building of this case was sold by auction, and there was no other evidence to recognize that the plaintiff was an possession during the exercise of lien.

Therefore, the plaintiff's above assertion is without merit to further examine.

3. (B) Determination as to the claim for extradition

A. The plaintiff's assertion

On January 25, 2005, the Plaintiff entered into a lease agreement with D and F on April 23, 2005 under which the Plaintiff leased the part (B) to Nonparty H, and on April 23, 2005, H resided in the said part and transferred it to Nonparty I without the Plaintiff’s permission. On December 2012, after receiving the successful bid for each of the instant buildings, the Defendant was awarded a favorable judgment by filing a lawsuit against I seeking delivery of the part (B), and I delivered the part (B) to the Defendant around the end of July 2013. The Plaintiff demanded that I deliver the part (B) to the Defendant, who is the lien holder, and that I was given a delivery of the mother to the Defendant, and thus, I was given a delivery of the part to the Defendant by indirectly infringing upon the Plaintiff’s possession under Article 10 (2) of the Civil Act. Thus, the Plaintiff may demand the Defendant to recover the part (B) by indirectly infringing upon the Plaintiff’s possession.

B. Determination

The testimony of the witness F of the first instance trial alone is insufficient to recognize that the Defendant illegally deprived of the part (B) by the testimony of the witness F of the first instance trial, and there is no other evidence to acknowledge it. Therefore, the Plaintiff’s assertion on this part is without merit without further examination.

4. 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 plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.