[1] Standard for determining whether a movable is a movable property

[2] Purport of the proviso of Article 256 of the Civil Act stipulating the exception to the ownership of corresponding objects / In a case where the articles attached by another person’s title are not economically valuable even if they are separated, whether they belong to the original owner of the real estate (affirmative), and the standard for determining economic value

[3] In a case where Gap, who had operated a gas station under a lease of the site, building, and business facilities of the gas station, sought delivery of oil storage tank installed on the ground and on the ground, which are laid underground of the gas station against Eul who purchased the site and building of the gas station in the voluntary auction procedure, the case holding that the court below erred by misapprehending legal principles in holding that the oil storage tank and the gas station may not be deemed as attached to the site of the gas station or as an accessory to the building since the oil storage tank and the oil storage tank were installed on the ground, the process of installing the oil storage tank and the gas station, the process of granting permission and succession to each status such as a factory, etc., whether it is possible to separate the oil storage tank from the site of the gas station, and whether the oil storage tank and the gas station are economically valuable even after separating the oil storage tank are attached to the right of lease, and thus, the oil storage tank and the gas station are

[1] Article 256 of the Civil Code / [2] Article 256 of the Civil Code / [3] Articles 100 and 256 of the Civil Code, Article 423 of the Civil Procedure Act

[1] Supreme Court Decision 2003Da14959, 14966 Decided May 16, 2003 / [2] Supreme Court Decision 74Da1743 decided April 8, 1975 (Gong1975, 8412)

Plaintiff

Defendant (Attorney Hwang Young-il et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2015Na63175 decided August 10, 2016

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul Central District Court. The Plaintiff’s appeal is dismissed.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

Based on evidence, the court below acknowledged the following facts: (a) on March 27, 2002, the Plaintiff leased the site and its ground buildings from the U.S. social gathering company (hereinafter “U.S. social gathering company”) and operated the gas station (hereinafter “instant gas station”); (b) on the voluntary auction procedure, the Defendant purchased the site and building of the gas station in this case; and (c) on April 11, 2006, the execution officer kept the oil remaining in the oil storage tank of the instant gas station to Nonparty 1’s agent.

Based on such factual basis, the lower court dismissed the Plaintiff’s claim for delivery of oil on the ground that there is no evidence to support that the oil stored by the enforcement officer is still in existence at the time of the closing of argument in the lower court.

In light of the relevant legal principles and records, the above judgment below did not err in failing to exhaust all necessary deliberations regarding the universality and substitution of oil, contrary to what is alleged in the grounds of appeal.

2. As to the Defendant’s grounds of appeal Nos. 1 and 3

A. In order to recognize a movable as being attached to a real estate, it shall be determined by comprehensively taking into account whether the movable is attached and combined to the extent that it is impossible to separate the movable without causing damage to the movable property or excessive expenses, and whether it can be an object of separate ownership in trade with independent economic utility from the existing real estate in its physical structure, use and function (see Supreme Court Decision 2003Da14959, 14966, May 16, 2003, etc.). Furthermore, the proviso of Article 256 of the Civil Act, which provides for exceptions to the ownership of the movable property, provides for exceptions to the ownership of the movable property, has the purport that it does not affect other person's rights attached to the movable property only if it is an object attached to the movable property with economic value. The determination of economic value shall be based on the existence of the economic independence of the general utility of the attached property in social norms (see, e.g., Supreme Court Decision 74Da17437, Apr. 8, 1975).

B. Upon admitting the judgment of the court of first instance, the court below acknowledged on March 27, 2002 that the plaintiff leased the site and building of the gas station of this case from the Non-Party 2 of the former representative director of the Korea-nam Gas Corporation, the lessee of the seven oil storage tank laid underground of the gas station of this case on the same day, and five alcoholic beverages installed on the ground, which are laid underground of the gas station of this case (hereinafter referred to as the "Gu-nam Gas station"), and that the plaintiff newly purchased and replaced two alcoholic beverages installed on March 24, 2003, and the plaintiff newly purchased and replaced these two alcoholic beverages installed in the existing facilities, and determined that the above oil storage tank and alcoholic beverages were attached to the plaintiff based on the right of lease. Thus, it cannot be deemed that they correspond to the site of the gas station of this case or they were attached to the building of this case, and all of them are owned by the plaintiff.

C. However, we cannot accept the judgment of the court below for the following reasons.

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

A) Around August 31, 1984, a social gathering company of this case completed a provisional registration of the right to claim transfer of ownership on the site and building of the gas station in this case on the grounds of trade reservation, but completed a principal registration of transfer of ownership on October 29, 1984.

B) The oil storage tank buried under the ground of the gas station of this case was completed on May 17, 1983 with permission for installation of a hazardous substance factory, etc. in accordance with the relevant laws and regulations, and was completed on September 24, 1990 with permission for extension of an underground tank around September 8, 1990. The status of the oil station was succeeded several times thereafter to the status of the oil station of this case. On April 13, 2001, the Plaintiff was succeeded to the Plaintiff on March 29, 202, and on May 15, 2006, the status was succeeded to the Defendant.

C) On the other hand, around September 23, 1982, the permission for petroleum retail business (gas station) was granted to the location of the gas station in the instant case pursuant to the relevant statutes. On April 13, 2001, the succession of the status to the Plaintiff on April 2, 2002, and the Defendant on May 12, 2006.

D) On March 27, 2002, the Plaintiff leased the instant gas station site, building, and all business facilities for the gas station business from the U.S. social gathering company. On the same day, the Plaintiff and the U.S. social gathering company entered into a lease agreement (hereinafter “instant lease agreement”), the land/building use consent, and the written consent on the use of the garage in the name of the Plaintiff and the U.S. social gathering company. On the same day, the Plaintiff and the former lessee Nonparty 2 entered into an acquisition or transfer agreement (hereinafter “instant free transfer agreement”) stating that the Plaintiff will gratuitously transfer the oil storage tank 7 and the 5 alcoholic beverage installed on the ground, buried in the underground of the instant gas station (hereinafter “instant free transfer agreement”).

E) However, Article 8 of the instant lease agreement provides that the lessee shall make every effort to preserve leased articles (such as a gas station building, business facility, collection expenses, and all other articles transferred by the lessor) in the same state as at the time of lease by the lessor, and the lessee shall make every effort to repair the leased building, business facilities (water separation facilities, lease and leakage inspection equipment) due to the aging of the leased building, business facilities (water separation facilities, lease and leakage inspection equipment). ② The lessee shall bear the costs of the fire-fighting equipment, office fixtures, and other business facilities transferred by the lessor among the business facilities. ③ The various kinds of authorizations issued from the lease (permission for petroleum selling business, business registration certificate, permission for installation of dangerous articles, report on soil contamination level, certificate of personal seal impression, sales contract, and other sales contract that are temporarily leased in the name of the lessee for the operation of the gas station. Therefore, when the lease contract of the gas station is revoked or terminated, the lessee shall transfer the name to a third party designated by the lessor or the lessor at its responsibility and cost.

F) The Plaintiff: (a) the Plaintiff was installed in the past, and (b) around March 24, 2003, purchased and replaced the two main alcoholic beverage around 24, respectively.

2) In light of the above facts, seven oil storage tanks and five alcoholic beverages in the instant gas station were installed by a social gathering company, or a social gathering company of the instant gas station was likely to acquire the existing facilities by purchasing the site and buildings of the instant gas station.

In addition, the instant lease agreement provides that various authorizations shall be returned at the time when the lease contract is terminated, and in light of the fact that the oil storage tank or alcoholic beverage is a facility related to the petroleum retail business license or the permission for installation of hazardous materials, it is difficult to view that the instant free transfer contract was prepared formally for the succession of the status of the hazardous materials gas station and the succession of the status of the petroleum retail business (the status of the oil station) by the lessee of the instant gas station as the lessee of the instant gas station changed from the south coast station to the

In addition, in light of the fact that the lessee assumes the duty to preserve leased articles in the instant lease contract, the lessor assumes the repair due to the aging of the business facilities, and the lessee bears the burden of repairing fire-fighting systems, house fixtures, etc. among the business facilities, it is difficult to readily conclude that the Plaintiff is the Plaintiff’s ownership solely on the basis of the fact that the Plaintiff bears the replacement cost.

Furthermore, even if the Plaintiff attached the oil storage tank to the site of the instant gas station based on his right of lease, if there is no economic value even after separating it, it shall be deemed that the ownership of the Defendant, the owner of the instant gas station, belongs to the owner of the instant gas station.

3) Therefore, in order to determine whether the oil storage tank and the gas station installed in the oil station of this case are owned by the Plaintiff, the court should have examined what circumstances the oil storage tank and the gas station installed, what process the permission for installation of hazardous materials factory, etc., permission for petroleum retail business (gas station) and succession to each status, and what kind of oil storage tank can be separated from the gas station of this case, whether the oil storage tank can be separated from the site of the gas station of this case, and whether there exists economic value even after separating the oil storage tank. Nevertheless, the court below erred by misapprehending the legal principles on the conformity, which led to failure to exhaust all necessary deliberation.

3. Conclusion

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

Justices Lee Ki-taik (Presiding Justice)