Claim on the remainder of construction costs of the contractor for new construction of a building and lien defense

A construction contractor who has not received the remainder of a new building construction work may be deemed to have a claim arising in relation to the house even if the ownership of the house exceeds the third party. Therefore, the right of retention defense may be exercised until the payment is made.

Article 320 of the Civil Act

Plaintiff

Defendant

Busan District Court (78Gahap780)

The original judgment shall be modified as follows:

At the same time, the defendant received 2,347,250 won from the plaintiff, and at the same time, 18 square meters per unit of house 18 square meters per unit of house 18 square meters per unit of house 2,347,250 won from the plaintiff.

The plaintiff's remaining claims are dismissed.

All the costs of lawsuit shall be divided into two parts of the first and second instances, and one of them shall be borne by the defendant, and the remainder by the plaintiff.

The above paragraph (2) can be provisionally executed.

The defendant ordered the plaintiff to use the ordered house, and shall pay 100,000 won per month from February 17, 1978 to the time of the above order.

Litigation costs shall be borne by the defendant.

The above paragraph (1) can be provisionally executed.

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

According to the evidence No. 1, which is not disputed in the formation, the fact that the house recorded in the order (hereinafter referred to as this house) was registered under the name of the plaintiff as of February 16, 1978, can be presumed to be owned by the plaintiff. The fact that the defendant occupied the house is not clearly disputed by the defendant. Thus, the defendant's use of this house is presumed to have been led to confession. The plaintiff, based on his ownership, requested the defendant to pay damages equivalent to the rent due to illegal occupation, not only the name of the house but also the certificate of personal seal impression and the completion certificate to the non-party 2 necessary for the preservation registration of the house, although the non-party 1, the original owner of this building, was entrusted to the non-party 1, who was kept the non-party 3, his creditor, without the non-party 1's consent, and thus, the non-party 3 again stored it in order to obtain a grace period of payment of KRW 4,00,000,000, without the plaintiff's title 2.

Therefore, the defendant's right of retention shall be judged as to the defendant's assertion. The non-party 1 gave 0 non-party 2 a subcontract for the above 5 house, and the non-party 2 again gives 0 a subcontract for the above 5 house and attracting it until he receives the construction cost. The non-party 1, 4, 9-1, 10 evidence No. 2, 10, and 3 were non-party 3's testimony of the non-party 2, non-party 4 and the non-party 2's non-party 3's non-party 7's non-party 8's non-party 1's non-party 7's non-party 1's non-party 7's non-party 2's non-party 7's non-party 8's non-party 2's non-party 2's non-party 7's non-party 1's non-party 7's non-party 1's non-party 7's counter-party 2's testimony.

However, the defendant asserts that construction costs for the above 3,4 units including the above 3,694,50 units of housing cannot be ordered without receiving some part of the materials for the non-party 1,2 units of housing construction beyond the above scope of recognition. Unlike the defendant's assertion, the non-party 2 can only claim for construction costs for the non-party 1 and 2 units of housing, and it cannot be viewed as a claim for the non-party's right of retention defense against the plaintiff who acquired ownership in excess of the above scope of recognition. On the other hand, since the plaintiff continued to use the above units of housing after the transfer registration of ownership in excess of the plaintiff's name on February 16, 1978, the defendant's right of retention for the plaintiff who acquired ownership in excess of the above scope of recognition cannot be viewed as a claim for the non-party 2's right of retention for the non-party 2's right of retention under the premise that the defendant acquired ownership in the name of the plaintiff 1 and 2 units of housing under the above 100th unit of damages.

Therefore, the plaintiff's claim for objection is justified within the above scope of recognition, and the remaining claims are dismissed, without merit. Thus, since the original judgment is unfair with a different conclusion, the defendant's appeal is accepted and modified. It is so decided as per Disposition by applying Article 96, Article 89 of the Civil Procedure Act, Article 199 of the same Act to the burden of litigation costs, and Article 199 of the provisional execution declaration.

Judges Choi Jae-ho (Presiding Judge)