2014Da225823 Claims

Credit Guarantee Fund

1. A stock company B;

2. C

3. D;

Chuncheon District Court Decision 2013Na5616 Decided September 2, 2014

January 15, 2015

The part of the judgment of the court below against the defendants shall be reversed, and that part of the case shall be remanded to the Panel Division of the Chuncheon District Court.

The grounds of appeal are examined.

1. Whether a misapprehension of the legal principle as to the original acquisition of an incomplete building

A building is planned to be constructed with several floors from the beginning on the design map, and the details thereof;

Where construction was interrupted due to a building owner’s reason while the construction was conducted with a building permit, and the construction was completed by a third party after delivery of the building in such state, if the structure, form, etc. of the building was constructed to the extent that it is deemed identical to that of the building permit under the generally accepted social norms at the time the construction was interrupted, the original owner’s ownership of the building is the original owner (see, e.g., Supreme Court Decision 201Da64041, Oct. 10, 2012).

In light of the circumstances of the judgment below, at the time of entering into the agreement of this case on July 26, 2012 between A and B (hereinafter “B”), the court below held that it is reasonable for A, the original owner of this case, to have acquired the building of this case from the original owner of this case, and thereafter, Defendant B Co., Ltd (hereinafter “Defendant”) acquired the building of this case from A in accordance with the agreement of this case, and subsequently accepted the Plaintiff’s claim for revocation of fraudulent act as to the building of this case.

However, we cannot accept the above decision of the court below for the following reasons.

According to the reasoning of the judgment below and the records, A, around June 3, 201, transferred the building of this case to G 507m (hereinafter referred to as "the land of this case") on the ground of 2, G 507m (hereinafter referred to as "the construction of this case") at the same time on the ground of 3, 201, and contracted the construction of this case to K 2, and the construction of this case was suspended due to the flood disaster of August 18, 201, and it was difficult for A, as at the time of 2, 201, K 2, and 6, the construction of this case was abandoned to the owner of this case, and around May 15, 2012, A again contracted the construction of this case to the owner of this case to the owner of this case, and as at the time of the construction of this case, it was difficult for A and B to obtain the construction permit of this case to the extent that it should have been completed by Defendant E 1, 2012.

In light of the aforementioned facts in light of the legal principles as seen earlier, the instant building was scheduled to be constructed on five floors from the beginning, and the building permission was granted accordingly. Since only the 4th floor and only 30% of the entire process were completed at the time the instant building was interrupted, it is difficult to deem that the structure, form, etc. of the instant building was constructed to the extent that it is recognized as identical to that of the general social norms with the content of the building permission. Therefore, the Defendant Company’s acquisition of the instant building that was interrupted by the instant building and completed the instant building, and the original owner of the instant building cannot be deemed to have acquired the instant building. Ultimately, the Plaintiff’s claim for the revocation of fraudulent act as to the instant building on the premise that the instant building cannot be deemed as the responsible property provided to the general creditors’ joint security against A. Accordingly, the Plaintiff’s claim for revocation of fraudulent act cannot be accepted.

Nevertheless, the court below accepted the claim for revocation of fraudulent act as to the building of this case by deeming that the defendant company acquired the building of this case from A in accordance with the agreement of this case and completed registration of preservation of ownership. In this case, the court below erred by misapprehending the legal principles on original acquisition of the building of this case. The ground of appeal pointing this out has merit.

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment below against the Defendants is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Young-young

Justices Lee Sang-hoon

Justices Kim Chang-tae, Counsel for the defendant

Justices Cho Jong-hee.