[1] Whether the secured claim of the right of retention should be "a claim arising with respect to an article" of another person (affirmative)

[2] In a case where Party A and Party B decided to remove Party B’s ground buildings and newly construct officetels at the same time, and Company B and Party B ordered Party B to remove the building, and Party B did not reach an agreement on the progress of the construction work between Party B and Party B, Defendant C and others were indicted on charges of interfering with Party B’s business by force by asserting a lien on the ground that they did not receive the construction cost related to the removal work, and installing a container at the new construction site, indicating a “in the exercise of lien” on the fence surrounding the construction site, marking a “in the exercise of lien” on a page, installing a car at the entrance, etc., the case holding that the judgment below erred in the misapprehension of legal principles on the ground that Party B and Party B were not guilty on the ground that it is difficult to view that Party C and Party C did not have any legitimate right to demand a lien on land as the secured claim on the land because they did not constitute a lien on the land

[1] Article 320 (1) of the Civil Code / [2] Article 314 (1) of the Criminal Code, Article 320 (1) of the Civil Code

[1] Supreme Court Decision 201Da96208 Decided January 26, 2012 (Gong2012Sang, 312) Supreme Court Decision 201Da44788 Decided October 24, 2013

Defendant

Prosecutor

Incheon District Court Decision 2019No2458 Decided February 6, 2020

The judgment below is reversed, and the case is remanded to the Incheon District Court.

The grounds of appeal are examined.

1. Article 320(1) of the Civil Act provides, “A person who possesses an article or securities of another person shall have the right to retain such article or securities until repayment is made, where a claim arising in respect of such article or securities is due and due, shall have the right to do so.” Thus, the secured claim of a lien shall be “a claim arising in respect of such article” (see, e.g., Supreme Court Decision 2011Da96208, Jan. 26, 2012).

2. A. The summary of the facts charged in this case is as follows.

On November 20, 2017, the Defendant interfered with Nonindicted Party 1’s work for construction of officetels by force, such as setting up a container down at the fence surrounding the construction site without permission, marking “in the course of exercising the right of retention at the construction site” as soon as possible, and setting up a bee color coo vehicle at the entrance. From around 09:30 on December 8, 2017 to 10:30 on the construction site of an officetel, the Defendant: (a) parked a vehicle at the entrance of the construction site to prevent access of vehicles; (b) opened a new string of the construction site to prevent Nonindicted Party 1 and its father from entering the construction site; and (c) opened a new string to prevent any sound from entering the construction site by force; and (d) opened a new string of Nonindicted Party 1 and its parts from entering the construction site.”

B. The lower court found the Defendant not guilty on the grounds that Nonindicted 2’s act of taking containers for the exercise of the right of retention can be seen as exercising legitimate authority, and that the Defendant exercised the right of retention on behalf of Nonindicted 2 or exercised the right of retention on behalf of Nonindicted 2. Therefore, it cannot be deemed that the Defendant interfered with the legitimate duties of Nonindicted 1, who is the landowner of the instant case, on the grounds that there was no proof of a crime.

3. The lower court’s determination is difficult to accept for the following reasons.

A. The record reveals the following facts.

1) around 2015, Nonindicted Co. 1 decided to remove Nonindicted Co. 3 (hereinafter “instant company”) and buildings on the ground of the instant land and construct officetels on the said land.

2) On March 18, 2016, the instant company, which was in charge of construction of officetels, contracted to Nonindicted 2 the construction of removing the instant building on the instant land, and Nonindicted 2 suspended the removal of the building, but Nonindicted 4 completed the removal of the building.

3) The instant company and Nonindicted Party 1 did not reach an agreement regarding the progress of the construction project, and the instant company and Nonindicted Party 2, the Defendant, etc. occupied the instant land by asserting a lien on the ground that they failed to receive the construction cost related to the removal construction from June 2017.

4) On November 15, 2017, the instant company drafted a memorandum of right of retention, stating that “The instant company shall receive additional construction cost of KRW 86 million from Nonindicted 1 and waives the right of retention” with Nonindicted 1 on November 15, 2017. Moreover, on November 19, 2017, the containers brought up while exercising the right of retention were removed from the instant land.

5) However, on November 20, 2017, Nonindicted 2 and the Defendant, etc., who again brought containers to the instant land on November 20, 2017, indicated “in the course of exercising the right of retention” on the fence of the construction site, and committed acts identical to the facts charged in the instant case.

B. We examine these facts in light of the legal principles as seen earlier. Nonindicted 2 concluded a construction contract with the instant company for removal of a building and removed the building on the instant land, and then acquired the claim for the construction cost accordingly. Nonindicted 2 cannot claim a lien on the instant land as the secured claim, on the ground that the claim for the construction cost, which Nonindicted 2 purchased as the secured claim of lien, was not related to the instant land itself. Ultimately, it is difficult to view that Nonindicted 2 is a legitimate lien holder for the instant land.

C. Nevertheless, the lower court acquitted all of the instant charges on the premise that the exercise of the right of retention by Nonindicted 2 is justifiable. In so determining, the lower court erred by misapprehending the legal doctrine on the establishment of the right of retention and the crime of interference with business.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee (Presiding Justice)