Plaintiff 1 and four others (Law Firm Shinsung, Attorneys Lee Dong-ho, Counsel for the plaintiff-appellant)

Defendant

Independent Party Intervenor 1 and one other (Law Firm Jeong, Attorneys Na-young et al., Counsel for the defendant-appellant)

June 7, 2011

Busan District Court Decision 2009Da3374, 2010Gahap1671 decided June 18, 2010 (Intervention)

1. All appeals filed by the defendant and the independent party intervenors are dismissed.

2. Of the costs of appeal, the part arising from the principal lawsuit shall be borne by the defendant, and the part arising from the participation by the independent party intervenors, respectively.

1. Purport of claim

(a) Main claim;

The Defendant shall deliver to the Plaintiffs the buildings listed in attached Table 2 (hereinafter “instant building”).

(b) Intervention by independent parties;

First, it is confirmed that there does not exist any lien or right of possession on the building of this case by the plaintiffs. Preliminaryly, the plaintiffs deliver the above building to an independent party intervenor (hereinafter "participating") or when the defendant and the non-party 2 deliver the building to the plaintiffs, the plaintiffs deliver the above building to the intervenors.

2. Purport of appeal

(a) Main claim;

The part against the defendant in the judgment of the first instance is revoked. The plaintiffs' claims against the defendant are dismissed in entirety.

(b) Intervention by independent parties;

In the judgment of the first instance court, the part against the intervenors is revoked. At the first instance court, it is confirmed that there is no right of retention and possession of the plaintiffs' building in this case. Preliminaryly, the plaintiffs deliver the above building to the intervenors, or if the defendant and the non-party 2 deliver the building to the intervenors, the plaintiffs deliver the above building to the intervenors.

1. Basic facts

A. On December 15, 1997, the registration of ownership preservation and ownership transfer had been completed in the land listed in paragraph (1) of the attached Table, which is the building of this case and its site (hereinafter referred to as the “instant real estate”), and the land listed in paragraph (1) of the attached Table, which is the building of this case and its site (hereinafter referred to as the “instant real estate”), and the registration of ownership transfer was completed on the ground of corporate merger on May 2, 1996.

B. On April 13, 1998, Plaintiff 1 and 2, together with Nonparty 3, performed the construction of the building of this case by being awarded a contract for the extension, renovation and facility construction of the building of this case, and did not receive the construction cost of KRW 1,810,126,800, and they occupied the building of this case by asserting a lien based on the claim for the construction payment. On December 21, 1998, the Plaintiff 1 and 2 filed an application for the lawsuit telephone against C Co., Ltd. on December 21, 1998, for the filing of an application for the lawsuit telephone against C Co., Ltd. (Seoul District Court 98Da654, Busan for the payment of KRW 1,60,00,000 and the payment of KRW 25% per annum from the day following the delivery of the original copy of this lawsuit to the day of full payment.

다. 퀸스파크 주식회사(이후 ‘백전건설 주식회사’로 상호가 변경되었다. 이하 ‘백전건설’이라 한다)는 2002. 7. 25. 삼미금속과 사이에, 백전건설이 이 사건 부동산을 52억 원에 매수하되, 주식회사 씨존의 원고 1, 2 및 소외 3에 대한 위 공사대금채무를 인수하기로 하는 내용의 매매계약을 체결하였고, 원고 1, 2 및 소외 3도 위 채무인수에 동의하여 같은 날 이 사건 부동산에 관하여 백전건설 앞으로 소유권이전등기가 마쳐졌다.

D. On February 3, 2003, Plaintiff 5 completed the construction work by being awarded a contract for 350,000,000 won for the repair and repair work of the instant building from the White Construction, but did not receive the construction payment.

E. On June 1, 2003, the Plaintiff 4 completed the construction work by being awarded a contract for 940,000,000 won for the renovation and repair of the instant building from the White Construction, but did not receive KRW 766,70,000 out of the construction cost.

G. On October 5, 2004, the Plaintiff 3 was awarded a contract for the construction of the instant building from the Bai Construction Co., Ltd., the construction of the instant building due to the Bai Construction, the construction of which was subcontracted to KRW 150,000,000, but was not paid the construction price.

H. Upon the commencement of the auction procedure for real estate rent as of February 21, 2004 by Busan District Court Decision 2004Ma8486 on February 21, 2004, Plaintiff 1, 2, and 5 filed a lien report on the above building by asserting that each construction cost claim exists.

I. CS Real Estate Brokerage Co., Ltd. (hereinafter “Scom”) changed its trade name to “Incom or Co., Ltd.” on September 6, 2006. Around that time, it received a decision of permission for sale from the auction court in the auction procedure of the above real estate auction on August 11, 2006. Around that time, the Plaintiffs asserted lien were not capable of paying the construction price. The representative of the Plaintiffs and Plaintiff 2, who is the Plaintiff, are operating the instant building in the same business form as the Plaintiff and the Plaintiff 2, shall pay the construction price. At the time of the sale of the leased deposit and the building, 50% of the construction price shall be paid at the time of the sale of the building, with the Plaintiff 2 as the collateral and the joint representative director was appointed as the recommended person by Plaintiff 2. Accordingly, Nonparty 4, who was recommended by Plaintiff 2 on September 6, 2009, assumed the office of joint representative director.

(j) On October 31, 2006, Jinna paid the successful bid price for the instant real estate after obtaining a loan of KRW 2.9 billion from the Jinna Mutual Savings Bank with respect to the instant real estate, which is set up a right to collateral security of KRW 3.77 billion with respect to the said real estate. At the same time, the registration of ownership transfer for the instant real estate was completed due to the sale of the same day auction, and the registration of ownership transfer was completed with respect to the instant real estate with respect to the fatherin Mutual Savings Bank with respect to KRW 3.77 billion with respect to the maximum debt amount of KRW 3.7 billion with respect to the instant real estate, Plaintiff 1, 2, 3, and 4 submitted to Jinna Mutual Savings Bank with a right to collateral security, which is written up with a waiver of the right to collateral security, and Plaintiff 2, who is a joint and several surety or a joint and several surety of the instant building.

(k) However, on October 2006, Plaintiff 2, 3, and 4 prepared “a letter of performance following the possession and the waiver of the right of retention” with the Humancom Company before submitting the said letter of waiver of the right of retention, and the content thereof are as follows:

① Since Indian Co., Ltd failed to pay the construction cost to the above Plaintiffs (Plaintiffs 2, 3, and 4), the said Plaintiffs recognized and confirmed the possession and lien of the entire building of this case as a repayment for the construction cost, and written notes therefor.

② A statement of waiver of possession and lien was prepared to be valid only for the loan purposes, due to the circumstances of Scomna, with the necessary private mutual savings bank, for the remaining amount of the successful bid in accordance with the voluntary auction of the instant real estate, and in any case, for Scomna’s loan convenience and in no case for Scomna’s financial institution, with mutual confirmation and consent that any effect does not extend to Scom or other third parties.

③ If Indiancom fails to repay the full amount of the construction price to the above plaintiffs, such possession, waiver of lien, in principle, shall be null and void, and in any case, the above plaintiffs' possession and lien shall be given priority.

6. The possession and lien of the above plaintiffs shall continue to be maintained until the payment of the construction cost to the above plaintiffs is made in full by the date the promise is made.com bears the obligation to repay the claims secured by possession and lien, and interest on the construction cost shall be 25% per annum from the date the obligation for the construction cost arises to the date the full repayment is made.

(l) On November 10, 2006, Plaintiff 3 completed the construction by being awarded a contract for each of KRW 829,400,000,000, and KRW 178,000,000, and KRW 115,20,000,00, and KRW 514,60,000, out of the construction cost, while Plaintiff 3 did not receive any payment for the construction cost.

(m) On December 13, 2006, Jinna received a loan from a new bank (hereinafter “new bank”) and repaid the above loan to the Jinhan Mutual Savings Bank. At the same time, the registration of the establishment of the establishment of the above neighboring mortgage in the name of the floating Mutual Savings Bank, which was established as to the instant real estate, was cancelled, and at the same time the new bank completed the registration of the establishment of the establishment of the neighboring mortgage amount of KRW 4.55 billion with respect to the instant real estate, and on August 20, 2007, the registration of the establishment of the neighboring mortgage amount of KRW 650 million with respect to the maximum debt amount was completed to Nonparty 5.

(n) After acquiring the ownership of the instant real estate, the Plaintiffs selected Plaintiff 2 as the representative of the Plaintiffs, and Plaintiff 2 was stationed in the second floor office of the instant building in accordance with the agreement entered in the said clause (i) and the letter of performance stated in the said clause (j) above, attached a warning stating that “the Plaintiff and the rest of the Plaintiffs, along with the said building, shall be prohibited from entering and leaving the said building.” In addition, Nonparty 1 (the Nonparty of the judgment of the Supreme Court) jointly leased part of the instant building with personalcom or the lessee and occupied it as management expenses, public charges, etc., and the possession relationship of the instant building is as listed below.

Non-party 6 and non-party 7-2 underground1 parking lot in the table located in the main text “Non-party 8’s representative director”) in the 1st underground 2nd underground parking lot in the non-party 6 and the non-party 7-Lease 2 (“Non-party 10, who was in the name of the non-party 14 or the non-party 15 of the non-party 15 of the non-party 17 soup “Non-party 10, who was in the name of the non-party 14 or the non-party 15 of the non-party 14 or the non-party 13 of the non-party 12 “non-party 13 who was in the name of the non-party 14 or the non-party 15 of the non-party 15 of the non-party 13 soup.”

(o) On September 11, 2007, Busan District Court Decision 2007Ma40979, and on January 29, 2008, upon the application of the new bank of the mortgagee, each of the real estate rent auction proceedings was commenced on January 29, 2008 at the above court No. 2008ta4260, and the plaintiffs reported the right of retention with the claim for construction price as collateral between July 2008 and September 9, 2008.

(p) On September 23, 2008, the defendant obtained a decision to permit the sale of the above real estate from the auction court during the auction procedure, and completed the registration of ownership transfer on October 1, 2008 after full payment of the price.

(q) The defendant filed an application with the Busan District Court for a real estate delivery order against the non-party 10, 8, 11, 9, 18, SP SP S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S on December 30, 208, the above court dismissed the above court's ruling of rejection on the ground that "the respondent is holding possession under the lien" on December 30, 2008, 208, 4370, 4371, 4373, 4363, 437, and 4372.

(r) On January 3, 2009, the Defendant: (a) installed a steel pent in the instant building; (b) mobilized the guard guards to prevent the Plaintiffs and lessees from entering the instant building; and (c) removed the office fixtures on the 4-9th floor of the instant building from the outside of the instant building (i.e., the Defendant was indicted due to the same facts, etc. as above; (b) was sentenced to a fine of KRW 700,000 at the Busan District Court on December 23, 2009 (the case at which the Defendant was sentenced to a fine of KRW 700,000 at the Busan District Court on December 23, 2009; (c) Nonparty 2 was indicted for the crime of interference with business and was notified by the Busan District Court on July 1, 2009 (C) of a fine of KRW 300,000,000 at the Busan District Court on July 1, 209).

(s) On January 16, 2009, the Plaintiffs filed an application with the Defendant for the provisional disposition of possession transfer of the instant real estate on the 22th of the same month with the right to claim the restoration of possession due to the deprivation of lien from the Busan District Court Decision 2009Kadan1222, as the preserved right, and completed its enforcement on the following day after receiving a ruling of acceptance from the above court.

(t. The intervenors completed the registration of ownership transfer on September 22, 2009, based on sale and purchase on August 5 of the same year with respect to each of the shares of the instant real estate on September 22, 2009.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 through 3, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 22, 26, 28, 29, 30, 33, 34, 37, 40, 41, 42, 43, 49, 53, Gap evidence 38-1, Eul evidence 9, 10, 34, Eul evidence 23-1, 2, 6 through 13, 33-2, 13-1, 33-1, 14, 15, 17, 18, 26, 28, 19-4, 28, 20-1, 23, 30-1, 4, and 4 of the witness testimony of the court below, Gap evidence No.

2. Judgment on the plaintiffs' main claim

A. The plaintiffs' assertion

The plaintiffs directly possessed part of the second floor of the building of this case under the right of retention, and the rest part is leased to lessees or indirectly occupied by means of receiving management expenses from lessees. Since the direct occupant does not want to recover the part directly occupied or cannot receive the refund of possession, the defendant is obliged to deliver all of the building of this case to the plaintiffs who have the right to claim the removal of disturbance or the right to claim the recovery of possession based on the right of retention.

B. Determination

(i) Determination on claims to eliminate interference under the lien;

Although the possession of the lien holder, which is the requisite for the establishment of the lien and the requirement for existence, is not directly or indirectly possessed, the lien shall be extinguished if it has been lost, and the right of retention shall not be recognized. Since January 3, 2009, the fact that the plaintiffs lost possession of the building in this case from January 3, 2009 to the date of closing argument at the trial as seen above that the plaintiffs lost possession of the building in this case, so long as the plaintiffs did not recover possession of the building in this case until the date of closing argument at the trial, the right of retention shall be extinguished even if the plaintiffs' loss of possession was caused by the defendant's illegal deprivation (Supreme Court Decision 2003Da46215 Decided February 27, 2004). Accordingly, the plaintiffs' claim for this part of this part

Judgment on the Claim for Recovery of Possession

㈎ 원고들이 이 사건 건물을 점유하고 있었는지 여부

1) In a claim for the recovery of possession, only is examined as to whether it was occupied at the time when the person asserts that the person was deprived of possession. Here, the term "Possession" refers to the objective relationship that appears to belong to the factual control of the person in terms of social norms, and in order to have de facto control, it does not necessarily mean physical and practical control over the object, but it is necessary to make a determination with a view to social norms by taking into account the time, spatial relationship with the object, principal right relationship, the possibility of excluding others' control (see, e.g., Supreme Court Decisions 2010Da18294, Jul. 15, 2010; 2002Da34543, Jul. 25, 2003).

In light of the above legal principles, around January 3, 2009, the plaintiffs asserted that they had deprived of the possession of the building of this case, and as to whether the plaintiffs had occupied the building of this case on the second floor of the building of this case on their behalf of or on the rest of the plaintiffs, the Minister of Health and Welfare attached a warning to the plaintiffs that "the plaintiffs occupied and detained" the building of this case at the end of the building of this case and the entrance, etc. of the building of this case. The plaintiffs used the warning that "the plaintiffs are prohibited from entering and leaving the building of this case." The plaintiffs leased part of the remainder of the building of this case through the non-party 1 or occupied the building of this case by receiving public charges, management expenses, etc. from the lessees at the time of the building of this case. Thus, the plaintiffs occupied the building of this case on or around January 3, 2009.

2) As to this, the Defendant asserts that there was no direct possession by the Plaintiffs on the second floor of the instant building, and that the Plaintiffs renounced their right of possession on the instant building by preparing and submitting a letter of waiver of right of retention to the Non-Private Mutual Savings Bank, and thereafter only humancomna has occupied the instant building as a lessor of the instant building.

The right of possession is acknowledged based on the fact that the possessor has occupied the article itself, and it is terminated only when the possessor voluntarily suspended the possession or forced the possession through lawful procedures for the remedy of rights, such as civil procedure. The facts alleged by the plaintiffs as of January 3, 209 are as follows: (a) evidence No. 1-1-2-1-2-1-6-1, evidence No. 5-1, evidence No. 7-1, evidence No. 7-1, evidence No. 8-1, evidence No. 23-9, evidence No. 25-2, evidence No. 25-2, evidence No. 27, No. 28, 29, 30, and 31-2; (b) evidence No. 2-1-2, evidence No. 3-1-4, evidence No. 2-1-2, evidence No. 3-1-2, evidence No. 2-1-2, evidence No. 3-1-2, and evidence No. 2-1-1-2, evidence No.

㈏ 피고가 원고들의 이 사건 건물에 대한 점유를 침탈하였는지 여부

1) The defendant applied for an order to deliver real estate against the non-party 6 and the non-party 8 who is the lessee due to Busan District Court 2008ta-Ma4360. However, on December 30, 2008, the above court received a decision of dismissal from the above court on the ground that the above lessee occupied the right of retention, and without taking legal measures such as a lawsuit to confirm the existence of the right of retention against the plaintiffs or the above lessees on January 3, 2009, the non-party 2 would be prevented from entering the building of this case by installing the steel gate in the building of this case and using the service cost and preventing the plaintiffs and the lessees from entering the house of this case and taking out the house of this case from the 4 to 9th floor in the building of this case. The defendant had occupied the building of this case without undergoing the execution procedure in accordance with the above acceptance decision even to some non-party 17 et al.

2) As to this, the defendant asserts that ① the defendant is the owner of the building of this case and thus excluded the plaintiffs from illegal possession is a legitimate exercise of rights. ② Since the plaintiffs' claims for construction price have already been fully repaid, there is no right of retention of the plaintiffs, and even if there exists a novel, the plaintiffs renounced their right of retention

On the other hand, the action of possessory right cannot be decided on the ground of principal right (Article 208(2) of the Civil Act). Thus, it is not allowed to set up a defense based on principal right in the action due to possessory right, and the right to claim possession is established when the actual control over the object, that is, the actual control over the object, that is, the right to claim possession. (See Supreme Court Decision 2002Da34543 delivered on July 25, 2003). Thus, it cannot be said that the defendant is the owner of the building of this case, and whether the plaintiffs have the right to retention over the building of this case, the defendant's assertion is without merit.

㈐ 피고가 원고들에 대하여 이 사건 건물의 인도의무를 부담하는지 여부

1) Part of the second floor of the instant building directly owned by the Plaintiffs

The facts that the plaintiffs directly occupied part of the second floor of the building of this case through the plaintiff 2, and that the defendant deprived of the plaintiffs' possession as seen earlier, the defendant is obligated to deliver it to the plaintiffs who seek the return of part of the second floor of the building of this case based on the right to claim the recovery of possession.

2) The remainder of the building of this case, which the plaintiffs indirectly possess

The fact that the plaintiffs indirectly occupied the remaining part of the second floor of the building of this case, excluding the part of the second floor of the building of this case, and that the defendant was deprived of possession by the plaintiffs and direct occupants, as seen earlier.

However, if the direct possessor is deprived of possession, the indirect possessor may demand the return of the article to the direct possessor, and if the direct possessor cannot receive or does not want the return of the article (Article 207(2) of the Civil Act), the indirect possessor may demand that the article be returned to him (Article 54, 55, and Article 25 through 31 of the Civil Act). In full view of the statements as well as the testimony as to the non-party 12 and 8 witness of the trial, the tenant of the building in this case received money from the defendant after he was deprived of possession of the building in this case and delivered the part of the building in this case to the defendant, and the non-party 6, 7, and 13 do not want the return of the article in this case to the non-party 15,17, and the non-party 15,17, and the non-party 18, who actually occupied the building in this case, do not want the return of the article in this case to the non-party 2.

Therefore, the defendant is obligated to deliver to the plaintiffs who seek the return of the remainder of the building of this case based on the right to claim possession recovery.

㈑ 소결

Ultimately, the plaintiffs' claims against the defendant for delivery of the whole building of this case based on the right to claim possession recovery are justifiable.

3. Determination as to the application for intervention by an independent party

A. The intervenor's assertion

The intervenors seek confirmation that there was no lien or right of possession over the building of this case on the ground that they acquired the ownership of the building of this case, and as a preliminary action, the Defendant and Nonparty 2 seek delivery of the building of this case on the ground that they had no lien or right of possession over the building of this case, and as a lawsuit for immediate delivery or future performance of the building of this case against the Plaintiffs, they seek delivery of the building of this case.

B. Determination

(1) In a case where an independent party intervenor asserts that all or part of the subject-matter of lawsuit is his/her own right, the intervention of the independent party intervenor is permitted only when the intervenor claims the right that is not compatible with the plaintiff's principal claim or the right that is entitled to priority thereto. In a case where the result of the plaintiff's claim does not harm the claims asserted by the independent party intervenor, the part of the application for intervention of the independent party intervenor against the plaintiff shall be dismissed (Supreme Court Decision 99Da53674, 53681 delivered on February 5, 2002, etc.).

In addition, it is recognized that a lawsuit seeking confirmation is the most effective and appropriate means to eliminate the plaintiff's legal status when the plaintiff's legal status is unstable and dangerous. If a lawsuit claiming performance is pending, the defendant may contest that the defendant does not have any obligation to him by seeking a ruling of dismissing the lawsuit. Thus, it is not a benefit of lawsuit seeking confirmation of the absence of the obligation (Supreme Court Decision 2001Da2246 Decided July 24, 2001).

B. The part of the plaintiffs' claim for the recovery of possession of the building of this case is unlawful as there is no benefit from the plaintiffs' request for intervention because the plaintiff was deprived of possession of the building of this case and the facts that the defendant was currently occupying the building of this case, and it is not subject to deliberation. Thus, the part of the plaintiffs' claim for the recovery of possession of the building of this case is not compatible with the intervenor's claim that the plaintiffs did not have any right of retention, or that the plaintiffs are obliged to deliver the building of this case to the intervenors, or that the plaintiffs are entitled to give priority to it. Thus, the part of the intervenor's claim for the confirmation of the absence of right to possession of the plaintiffs of this case is inappropriate as it does not meet the requirements. The part of the intervenor's claim for intervention of this case is unlawful as there is no benefit from the plaintiffs' request for intervention [this case's situation of not occupying the building of this case after the plaintiffs was deprived of possession of the building of this case, and there is no reason to believe that the plaintiffs' claim for delivery of the building of this case cannot be established in 197.

Therefore, the Intervenor’s motion to intervene in the instant claim is all unlawful.

5. Conclusion

Therefore, the plaintiffs' claims against the defendant are accepted as reasonable, and all of the intervenors' claims are dismissed as unlawful, and the judgment of the court of first instance is just in conclusion. Thus, all appeals filed by the defendant and intervenors are dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Kim Yong-ho (Presiding Judge)

(1) While concluding a sales contract on the purchase of the instant real estate from Sam-U.S. metal Co., Ltd., the construction of expansion and reconstruction of the instant building was conducted with the consent of Sam-U.S. metal.