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

[2] The case reversing the judgment of the court below which did not recognize possession of the lien holder in a case where the lien holder of a factory building based on the construction deposit claims filed a lawsuit for the recovery of possession due to unjust deprivation of possession by the successful bidder

[3] Whether the lien holder can request the successful bidder to repay the secured debt (negative)

[1] "Possession" refers to an objective relationship that shows that an object belongs to a factual control of a person under social norms, and to have a de facto control, it shall not necessarily mean that the object is physically and practically controlled, but shall be determined in conformity with the concept of society by taking into account the time, space and principal relationship with the object, possibility of excluding others' control, etc.

[2] The case reversing the judgment of the court below which did not recognize the possession of the lien holder on the ground that there is sufficient room to see that the lien holder of a factory building based on the claim for payment for the remainder of the construction works of a new factory had 10 employees and sent 10 employees and sent 10 employees and sent 10 employees and 10 employees in the vicinity of the factory to guard and protect the factory, on the ground that the lien holder did not recognize the possession of the lien holder on the ground that the lien holder did not recognize the possession of the factory on the ground that the lien holder did not recognize the possession of the factory, on the ground that it is enough that the lien holder did not recognize the possession of the factory, on the ground that the lien holder did not recognize the possession of the factory, by sending 2 employees in the main direction to the security service company and the security service contract with the security service company.

[3] Article 608 (3) of the Civil Procedure Act, which applies mutatis mutandis to an auction procedure to exercise a security right pursuant to Article 728 of the same Act, provides that the successful bidder shall be liable to repay the claim secured by the lien to the lien holder. Here, the meaning of "the obligation to repay" is that the obligation on the real estate is taken over as it is the intention to succeed to the obligation on the real estate. Thus, the lien holder can refuse to transfer the real estate which is the object of the lien until the successful bidder reimburses the secured claim, and can not claim the repayment of the secured claim.

[1] Articles 192 and 204 of the Civil Act / [2] Articles 192, 320, 328, and 664 of the Civil Act / [3] Articles 608(3) and 728 of the Civil Procedure Act, Article 320 of the Civil Act

[1] Supreme Court Decision 92Da37710 delivered on November 10, 1992 (Gong1993Sang, 92) Supreme Court Decision 94Da23821 delivered on July 14, 1995 (Gong1995Ha, 277) / [2] Supreme Court Decision 93Da289 delivered on April 23, 1993 (Gong1993Ha, 1532), Supreme Court Decision 95Da16202, 16219 delivered on September 15, 195 (Gong195Ha, 3395)

East Asia Construction Industry Co., Ltd. (Attorneys Lee Young-gu et al., Counsel for the defendant-appellant)

Private Electric Industry Co., Ltd. (Attorney Kang Byung-ho, Counsel for the defendant-appellant)

Gwangju High Court Decision 94Na964 delivered on December 30, 1994

The part of the judgment of the court below against the plaintiff as to the land listed in Attached Table 1. and the claim for the return of the factory building listed in Attached Table 2. It is reversed, and this part of the case is remanded to the Gwangju High Court. The remaining grounds of appeal by the plaintiff are dismissed, and the costs of appeal by the dismissed part

The Plaintiff’s grounds of appeal are examined (the grounds of appeal on the Plaintiff’s supplemental appellate brief submitted after the deadline for submitting the appellate brief are examined to the extent that it supplements the grounds of appeal).

1. According to the reasoning of the judgment of the court below, the plaintiff was not obligated to deliver the above 190 electric wire to the above 10th of August 3, 190, to the above 20th of the date of delivery of the above 192 electric wire, and the construction of the new factory was completed on July 31, 191 with the supply of the 4,09,000 factory building as stated in the 1st of the judgment below (hereinafter the above 2nd of the 1st of the above 1st of the 9th of the 1st of the 1st of the 1st of the 1st of the 2nd of the 1st of the 1st of the 1st of the 2nd of the 1st of the 1st of the 1st of the 2nd of the 1st of the 1st of the 2nd of the 1st of the 1st of the 2nd of the 1st of the 2nd of the 1st of the 2nd of the 1st of the 1st of the 2nd of the 1st of the 1st of the construction.

2. However, in order to say that an article belongs to a factual control by social norms, it does not necessarily mean physical and practical control, but should be jointly determined according to social norms, taking into account the time and space relationship with the article, the possibility of excluding others from the possession. In a lawsuit for recovery of possession, it is possible to examine only whether the article occupied at the time when the article was occupied. As acknowledged by the facts and records established by the court below, it is clear that the above uniform cable was insolvent and its employees were sent to the factory, and then, the court below concluded a service contract with the Korea Security and Security Work Agency, and concluded that the plaintiff had the duty to guard the factory of this case to maintain and guard the factory of this case, and therefore, the court below should have the plaintiff maintained the above legal principles as to the removal of the article from the factory of this case from the factory of this case, and should have it be viewed that the plaintiff did not occupy the factory of this case for the reason that the plaintiff did not have any legal reasoning as to the removal of the article from the factory of this case from the factory of this case.

3. Meanwhile, Article 608 (3) of the Civil Procedure Act, which applies mutatis mutandis to an auction procedure to exercise a security right pursuant to Article 728 of the same Act, provides that the successful bidder is responsible for reimbursing the obligation secured by the lien to the lien holder. Here, the meaning of "the obligation to repay" is that the obligation on the real estate is taken over as the intention to succeed to the obligation on the real estate. Thus, the lien holder can refuse to transfer the real estate, which is the object of the lien, until the secured claim is repaid to the successful bidder, and can not claim the repayment of the secured claim.

Therefore, even if the plaintiff acquired the right of retention on the factory building of this case, it cannot be claimed against the successful bidder, who is not the debtor, for the payment of the above construction remainder claims. Although the reasoning of the judgment below differs, the conclusion rejecting the plaintiff's claim for the payment of the remainder of construction works is justifiable, and there is no error of law such as misunderstanding the legal principles on the right of retention, such as the theory of lawsuit, and the rejection of the above plaintiff's claim cannot be deemed to violate the principle of good faith on the ground that there are circumstances such as the assertion of the lawsuit

4. Accordingly, the part of the judgment of the court below against the plaintiff as to the claim for the refund of the factory of this case is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the remaining appeal is dismissed, and the costs of appeal as to the dismissed part are assessed against the losing party. It is so decided as per Disposition by the assent of all participating

Justices Cho Chang-tae (Presiding Justice)