205Na14274 Damage (as referred to)

00 Mutual Savings Banks

Busan Jung-gu 00 Dong 2 3-1

Representative Director Lee 00

Law Firm 00

[Defendant-Appellee] Defendant 1

1. A stock company with 00 coolants;

00 U.S. 00 U.S. 76

Representative Director Lee 00

Attorney Lee In-bok, Counsel for the defendant-appellant

2. Stock companies,000 mutual savings banks;

Busan Dong-gu 00 Dong 830-55

Representative Director Kim00

Attorney Gyeong-soo et al., Counsel for the defendant-appellant

3. Transfer00 (59000- 10000)

4. Stambling0 (550000 - 1700000)

The above defendants' address in Busan, Seo-gu 00 Dong 523-45 00 air conditioners

[Judgment of the court below]

00Fresh Stock Company

Busan O0 Dong 523-45

Representative Director Park O

Attorney Lee In-bok, Counsel for the defendant-appellant

Busan District Court Decision 2004Gahap1250 Delivered on July 28, 2005

July 26, 2006

August 30, 2006

1. The part of the judgment of the court of first instance against the plaintiff corresponding to the amount ordered to be paid below shall be revoked. The defendants shall pay to each plaintiff 108,765,437 won with 5% interest per annum from February 8, 2004 to August 30, 2006 and 20% interest per annum from the next day to the date of full payment.

2. All remaining appeals by the Plaintiff are dismissed.

3. The total costs of the lawsuit shall be borne by the Defendants.

4. The monetary payment portion under paragraph (1) may be provisionally executed.

The judgment of the court of first instance is revoked. The defendants pay to each plaintiff 109,462,94 won with 5% interest per annum from the day following the date of service of the last copy of the complaint to the day of the judgment of the court of first instance and 20% interest per annum from the next day to the day of full payment.

1. Facts of recognition;

The following facts are no dispute between the parties, or evidence Nos. 1-1 through 6, evidence Nos. 1-2, 3, evidence Nos. 3-1 through 4, evidence Nos. 4, and 5-1, 2, 3, A, evidence Nos. 6, 7-1 through 6, 11 through 14, respectively, and evidence Nos. 10-1, 2, 3, 19, 44, 45, 49 through 55, 69, 72, Gap evidence Nos. 11-1, 1, 2, 3, 9, 10, 12, 14, 14, 1, 1, 2, 2, 3-1 or 3-1, 2, 4-2, 10 or 5-10 of the evidence Nos. 10, 10-2, 4, and 7-10 of this case.

A. Since December 200, KimO entered into a deposit contract for freezing fishery products with Defendant 00 freezing Co., Ltd., Ltd., 000, 000, 000, and 00, 000, which was established for the purpose of freezing fishery products for the purpose of freezing and storage business (hereinafter referred to as “the supplementary intervenor”). At the time, the KimO had kept the frozen fishery products, including the imported goods freezing in the storage of 10 stories located in Busan, Seo-gu 523-45, 00, 523-45, located in the supplementary intervenor (hereinafter referred to as “the instant freezing warehouse”).

B. On June 28, 2001, Kim 00 obtained a general loan from the plaintiff as a joint and several surety by the assistant intervenor, with a credit limit of KRW 130 million,000,000,000 from the plaintiff and the credit period until December 28, 2001 (which was changed to August 28, 2002). In order to secure the above loan obligations, to secure the above loan obligations, the plaintiff and the plaintiff notified the transfer of the above loan to the person who transferred the security for transfer under the above auxiliary contract, of the total market price of KRW 190,568,00,00, which was the aggregate of the domestic market price of KRW 190,568,00,000, which was deposited in the freezing warehouse of this case as of June 28, 2001.

C. Under the foregoing security agreement, the collateral is occupied, used, preserved, and managed by Kim 00 as the Plaintiff’s agent, who is the obligee (Article 2(1)) and bears the expenses (Article 2(1)). The above notice of transfer states to the effect that “All expenses, including freezing expenses, shall be paid by the transferor, the delivery order of the goods and quantity on the certificate of custody and the transfer of the name thereof, and other instructions on ownership shall be delivered by the delivery certificate and the certificate of custody in the name of the Plaintiff, and all of them shall be returned to the supplementary intervenor within one month after the delivery of the entire amount.”

D. However, since August 2000, 2000, GabO, as a director and manager of the supplementary intervenor, who had been in overall control of the management and operation of the freezing of this case since 1994, in collusion with the owners of Kim 00 et al. who kept freezing fishery products in the freezing warehouse of this case, obtained loans from financial institutions and used the loans to cover 00 and the loans for personal debt repayment of the owners of the above goods by setting up a false certificate of custody that had already been transferred for security against the financial institutions, including the plaintiff, by arbitrarily shipping the frozen fishery products, which had already been transferred for security against the financial institutions including the plaintiff, or by making a false certificate of custody changed the date.

E. In addition, in the process, Kim 00 entered into a false certificate of custody issued on December 1, 2001 by the winners of the rest 4,278 of the 4,648 boxes of this case, other than the 370 boxes released from Gaba 4,648 boxes of this case, and entered into a false certificate of custody on December 1, 2001 with Defendant 00 Mutual Savings Bank (hereinafter “Defendant Bank”) on December 7, 2001 with the above freezing 4,278 boxes and Kim 00 other owned on December 1, 201, which were 5,000 boxes of domestic freezing and 9,278,954,000 won at the market price of the Gaba 4,278 boxes of this case, and that the above certificate of transfer was not issued as KRW 33670,000,000,0000 to Defendant Bank’s 500,000,0000 won.

F. Thereafter, on July 8, 2002 due to difficult financial circumstances, the Intervenor sold to Defendant 00 coolants stocks (hereinafter “Defendant 00 refrigeratings”) the freezing storage and its annexed facilities, etc. to KRW 3.5 billion. After that, during the process of confirming the actual inventory status of the freezing warehouse of this case for the acceptance and transfer of the freezing storage of this case, the Intervenor was aware of the aforementioned breach of trust by GabO, and subsequently dismissed GabO on July 18, 2002, and appointed OO directors on the follow-up date, on the basis of the inventory status of the freezing warehouse of this case, which was confirmed by the 00 directors to take charge of the release of frozen fishery products stored in the freezing warehouse of this case, and acquired the ownership transfer registration agreement between Defendant 00 and Defendant 100 and Defendant 100, on the basis of the inventory status of the instant freezing warehouse and the transfer of the ownership transfer registration agreement to the Intervenor’s employees.

G. Defendant 00, which was located in Busan on August 1, 2002, to take charge of taking over and handing over the freezings, etc. of this case as employees of Defendant 00, was entirely released from 00 directors on the same day to the Plaintiff on June 28, 2001, but upon the entry on December 1, 2001, the Defendant bank received 9,224 excluding the 50 boxes released from the transfer for security on December 19, 201 pursuant to the order of the Defendant bank to keep them separately from 9,26 boxes and 88 (the 4,26 boxes of the first 4,278 boxes of the first 4,278 boxes) and 9 (the 5,000 boxes of the first 5,09,98 boxes of the first 1,201 and the 209, the 2017.1, 2007, 301, 197, 201.

H. Meanwhile, on August 6, 2002, the Plaintiff’s head of the management team, who was in charge of credit and collection of claims, was notified of the receipt and transfer of the instant freezing on the same day from the director of 00 on August 6, 2002, and visited the freezing warehouse of this case on June 28, 2001, which was recorded as being kept by the Plaintiff on July 21, 2001, as being in custody by the 4,278 winners of the instant frozen warehouse of this case, whose transfer for transfer was established in the Plaintiff’s future on June 28, 201, and again received a list of the inventory status of fishery products of the freezing warehouse of this case (No. 2-1), and again received the inventory status of the Defendant ParkO on August 20, 200 and August 23, 202 from each of the 3rd inventory of each of the owners (No. 23, 2002).

I. The plaintiff did not request the assistant intervenor to issue a certificate of custody following the conclusion of a new deposit contract against the defendant 00 freezing, but only requested the plaintiff to accept the existing joint and several surety obligation against the plaintiff on the ground of acceptance of the freezing warehouse of this case. On August 29, 2002, the plaintiff re-issued the inventory status table (Evidence A No. 3-1) for each owner of goods, which entered that the freezing was not actually carried out from the defendant 00 cooling on August 29, 2002, and on September 5, 2002, the right to request the delivery of movable property based on the transfer contract as the right to be preserved, against the plaintiff 4,228 boxes of the instant freezing storage of this case, but did not agree to the execution of a provisional disposition against the defendant 0 and the assistant, on September 5, 200 on September 10, 202, on the ground that the defendant 0 was not a provisional disposition at the time of execution.

(j) On September 12, 2002, the Defendant bank issued to Defendant 00 to Defendant 10 to Defendant 1, and requested the Defendant bank to release a box 9,224 stated in the inventory certificate as well as inventory 4,226 boxes out of the freezing of this case. Defendant 00 confirmed whether it is possible to release to Kim 00, and issued a complete shipment to the Defendant bank.

(k) Meanwhile, on September 12, 2002, the Plaintiff had succeeded to the status of the Intervenor by the Defendant 00 coolant again, and intended to execute on September 16, 2002 by receiving a provisional disposition prohibiting the transfer of possession of corporeal movables (Seoul District Court Decision 2002Kahap1924, Jun. 12, 2002) against the Defendant 00 and the Defendant 00 coolant. However, as seen above, the Defendant bank had already been released from the instant freezing and could not execute the instant disposition.

C. Of the Plaintiff’s loans of KRW 130,00,000 to the Plaintiff Kim 00 as security, the outstanding amount is 117,881,160 won per annum from June 29, 2002 to August 28, 2002 and interest rate per annum from the next day to the date of complete payment.

(m) The Defendant Bank imposed the entire boxes of KRW 9,224, as above, KRW 237,400,000 around that time.

2. Establishment of liability for damages;

(a) Defendant Bank;

(1) The argument

The Plaintiff asserted that the Defendant bank infringed the Plaintiff’s security interest by shipping out of the instant freezing goods and disposing of them to a third party, even though it could not oppose the Plaintiff as a junior mortgagee on the freezing goods for which the security was established in the future, and that the Defendant bank did not know that the instant freezing goods were the goods that were transferred to the Plaintiff as a security, and that the Defendant bank bona fide acquired the instant freezing goods by being handed over by the method of the transfer of the right to claim the return of the goods to the Plaintiff, and therefore, it is justifiable for the Defendant bank to have disposed of the said frozen goods by shipping out of the instant freezing goods.

(2) Determination

(A) In a case where the obligor transferred the movable property under his/her possession to the obligee in order to secure a pecuniary obligation, but delivered it by means of possession amendment, and the obligor continued to possess it, barring any special circumstance, barring any special circumstance, the ownership of the movable property is merely transferred in trust, and thus, the obligor retains the ownership of the movable property in the internal relationship between the obligee and the obligor, but in external relationship, the obligor is an unentitled person who already transferred the ownership of the movable property to the obligee. Therefore, even if the obligor concludes a contract to establish a security for transfer with another obligee and takes the method of possession amendment, it is not recognized as a bona fide acquisition, not a delivery of reality, and thus, the obligee who concluded the contract later cannot acquire the security for transfer (see Supreme Court Decision 2004Da45943, Dec. 24, 2004).

(B) In the case of this case, Kim 00 did not directly possess the freezing of this case, and caused indirect possession by leaving the freezing warehouse of this case in accordance with the deposit contract with the intervenor, and at the time of concluding the transfer contract with the plaintiff and the defendant bank, the freezing of this case still remains in custody in the freezing warehouse of this case and did not support the actual delivery to both the plaintiff and the defendant bank. Thus, it is determined whether the defendant bank can acquire the right to transfer a security for the freezing of this case in good faith, depending on whether the freezing of this case was delivered by the method of possession revision or by the method of transferring the right to claim the return of neck goods of this case.

(C) However, the occupancy amendment is a method of delivering a movable which continues to hold indirect possession to the transferee as an intermediary in possession of the assignee by establishing an intermediary relationship with the assignee, and where the transferor indirectly occupies the object by mediating the possession of a third party, the transferor transfers the ownership of the movable to the transferee by transferring the transferor the right to claim the return to the third party. The greatest difference between the above two methods of delivery is, in the case of the occupancy amendment, the transferor continuously occupies the movable, thereby maintaining the legal relationship over the said delivery (in the case of the indirect possession of the object, the transferor additionally establishes an indirect possession relationship with the assignee, thereby acquiring the upper-tier indirect possession to the transferee). However, in the case of the transfer of the right to claim the return of the object, the transferor would no longer have the possession of the movable, and would go beyond the legal relationship with the movable ultimately, if the transferor transfers the object with the object of security, such as the transferor, to the third party, and thus, if the transferor does not want to have the right to claim the return of the object, it can be viewed as an ordinary method of choosing from the legal relationship with the object.

(D) In this case, although the method of delivering the freezing of this case under the transfer security agreement is not clearly stipulated on the basis of the transfer security agreement, as seen earlier, Kim00 and the Plaintiff and the Defendant bank provide that all of the collateral set forth in the transfer security agreement entered into between the Plaintiff and the Defendant bank shall be the creditor's representative, who shall use, preserve, and manage the collateral, and bear the expenses. Kim0 maintains the status of indirect possessor as to the freezing of this case even after the transfer security agreement with the Plaintiff, Kim 00 transfers the air conditioning of this case to the supplementary participant as a collateral after the conclusion of the transfer security agreement with the Plaintiff. After the transfer security agreement with the Plaintiff, the transfer of the air conditioning of this case was made to the supplementary participant under the notice of transfer security, and the payment of all the expenses will be made by Kim OO and the Defendant bank at the time of the transfer security agreement, and it is still possible for the Plaintiff and the Defendant bank to submit the certificate of the transfer of the transfer security right to each of the above 000 air conditioning of this case after the transfer security agreement with the Plaintiff.

(3) Sub-decisions

Thus, even if the freezing of this case was unaware of the fact that it was already offered as a security for transfer, the Defendant bank, which concluded a security agreement for transfer and received the freezing of this case by the method of possession revision, cannot acquire the security right. Thus, the Defendant bank's act of disposing of freezing of this case, thereby making the Plaintiff, the original mortgagee, impossible to enforce the security right, constitutes an unlawful act infringing the Plaintiff's security right, and therefore, the Defendant bank is liable to compensate the Plaintiff for the damages suffered by the Plaintiff.

B. Defendant 00 coolant, Park 00, Lee 00

(1) The argument

The Plaintiff asserted that the Defendants filed a claim for damages due to tort on the ground that the Plaintiff was a legitimate mortgagee and the Defendant bank, who was aware or could have known that the Plaintiff was an unentitled person, as an object of double transfer to the Plaintiff and the Defendant bank, filed a claim for damages due to tort on the ground that the Defendant bank, an unentitled person, released freezing goods in this case, and thereby infringed the Plaintiff’s right to security for transfer. The Defendants asserted that the Defendants did not err because they knew that the Defendant bank was subject to double transfer of the instant freezing goods from the Intervenor without knowledge of the double transfer of the instant freezing goods, and that the Defendant bank was the right holder for the freezing goods in this case, and thus, they were released to

(2) Facts of recognition

6. The following facts are as follows: ① Defendant 0: (a) purchased the freezing warehouse of this case from Defendant 2; (b) Defendant 2 was in custody of the freezing warehouse of this case; and (c) Defendant 2 was in custody of the said warehouse on June 28, 200; (b) Defendant 2 was in custody of the said warehouse; (c) Defendant 0 was in custody of the said warehouse; and (d) Defendant 2 was in custody of the said warehouse to the effect that the said warehouse was in custody on December 1, 201; and (e) Defendant 2 was in custody of the said warehouse; (e) Defendant 00 was in custody of the said warehouse; and (e) Defendant 2 was in custody of the said warehouse; and (e) were in custody of the said vessel; and (e) were in custody of the said vessel; and (e) were in custody of the said vessel; and (e) were in custody of the said vessel; and (e) were in custody of the said vessel.

(3) Determination

According to the above facts, it shall be deemed that Defendant 1 knew, or could have known, on September 10, 2002, that the freezing of this case was offered as a security for the Defendant bank as a security for transfer, or that at the latest, this00 visited the freezing warehouse and attempted to execute the said warehouse portion. Defendant 00 freezing and Defendant 100, at least on September 10, 2002, that the freezing of this case was offered as a security for the Plaintiff and the Defendant bank as a security for transfer, and that the freezing of this case was offered as security for the Defendant bank on December 1, 2001, which was expressed that the freezing of this case was transferred as security for the Defendant bank.

Therefore, even though the Defendant’s provisional disposition order on September 10, 200, which was issued by the Plaintiff on September 10, 2002, was made by the auxiliary intervenor who was not the head of the Defendant 00 cooling, and thus did not have any obligation to comply with its enforcement, it was found that not only the freezing warehouse of this case, but also the Defendant 00 and 200, which received fishery products from the auxiliary intervenor, were in charge of shipping fishery products from the Defendant 00 and 00, which were in charge of Defendant 1’s employees of the Defendant 0: (a) upon receipt of a request from the Defendant bank on September 12, 2002 for shipping fishery products of this case, the Defendant bank should inform the Plaintiff of the Plaintiff’s right as to freezing goods, or notify the Plaintiff of the fact of requesting the shipment of the Defendant bank; (b) thereby, the Defendant bank should exercise its duty of care necessary to confirm whether the legitimate holder of the right to the freezing goods of this case was delivered to the unentitled; and (c) thereby, (d) did not infringe the Plaintiff’s right of transfer.

(4) The theory of lawsuit

Therefore, Defendant 00 freezing, 00, and GabO are liable to compensate the Plaintiff for damages caused by Defendant Bank, together with the Defendant Bank, by disposing of the freezings of this case without permission.

Unless there are special circumstances, the amount of damages that the Defendants are liable to compensate the Plaintiff should be calculated on the basis of the value at the time of disposal of the freezing goods of this case for which the Plaintiff’s right to freezing was infringed (Defendant 00, 00, GabO claimed that the freezing goods of this case were lost the value of the goods due to the expiration of the distribution period; however, it is separate from the administrative or criminal sanctions imposed on the Defendant bank on the sale of frozen fishery products of this case beyond the distribution period, and as long as the Defendant bank sold them in return for payment, the amount of damages should be calculated on the basis of the calculation of losses. As seen earlier, the above assertion is rejected. As such, the Defendant bank sold 90,224 boxes including 4,226 boxes of freezing goods of this case to KRW 237,400,000,000,000,000 won, 108,75,437,247,20420/29).

4. Conclusion

Therefore, the defendants, the joint tortfeasor, are liable to pay damages to each plaintiff at a rate of 5% per annum under the Civil Act from February 8, 2004, which is the day following the date of service of a copy of the complaint of this case, to August 30, 2006, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment. Thus, the plaintiff's claims against the defendants shall be accepted within the above fixed limit, and all of the remaining claims shall be dismissed without any justifiable reasons. Since the judgment of the court of first instance is unfair by partially accepting the plaintiff's appeal, and the part corresponding to the above amount of damages to the plaintiff shall be revoked, and the plaintiff shall be ordered to pay damages to the defendants, and all of the remaining appeals of the plaintiff shall be dismissed without any justifiable reasons.

Maternity Only (Presiding Judge)

United Kingdom of Great Britain

Kim Maritime Shelf