Plaintiff 1 and one other (Attorney Song Jin-jin, Counsel for the plaintiff-appellant)

Seoul High Court Decision 201Na14144

Daejeon District Court Decision 2009Da23181 Decided January 15, 2010

April 30, 2010

1. Of the judgment of the court of first instance, the part against the plaintiff 1 is revoked, and the plaintiff 1's claim corresponding to the revoked part is dismissed.

2. The defendant's appeal against the plaintiff 2 is dismissed.

3. The total costs of litigation between the plaintiff 1 and the defendant shall be borne by the plaintiff 1, and the costs of appeal between the plaintiff 2 and the defendant shall be borne by the defendant.

Claim: ① A lien with respect to the real estate indicated in the “Indication of Claim Claim” listed in the “Indication of Claim Claim” listed in the “Indication of Claim Claim” listed in the “Indication of Claim Claim” listed in the attached Table 1 attached hereto to Plaintiff 1, and with respect to the real estate indicated in the “Indication of Claim” listed in the attached Table 2 attached hereto, the existence of a lien with respect to the claim described in the “Indication of Claim Claim” listed in the same list is confirmed, and ② A lien with respect to the real estate indicated in the “Indication of Claim Claim” listed in the attached Table 3

The purport of appeal: The judgment of the first instance is revoked. All plaintiffs' claims are dismissed.

1. Facts of recognition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in the statements in Gap evidence Nos. 1 through 7 (including each number, if any), Gap evidence No. 9-1 through 3, Gap evidence No. 10, Gap evidence No. 11-1, 2, Gap evidence No. 11-2, Gap evidence No. 13, Eul evidence No. 16 through 19 (including each number, if any), Eul evidence No. 3-3, 4, Eul evidence No. 4-1, and Eul evidence No. 8.

A. Conclusion and possession of the plaintiffs' sales contract

1) The Plaintiffs entered into a contract (hereinafter “instant sales contract”) with the Nonparty Company to purchase each of the real estate stated in [Attachment 11, 112, and 115] indicated in [Attachment 1 through 3] indication, as follows, (hereinafter “instant real estate”) from the Nonparty Company, which is the owner of reputation ○○○○○○○, a commercial building on the fifth floor above the fifth floor above the ground level (hereinafter “instant commercial building”) on the ground of the Seo-gu Seo-gu Seoul Special Metropolitan City (number omitted). The Plaintiffs entered into a contract with the Nonparty Company to purchase each of the said real estate (hereinafter “instant sales contract”).

Plaintiff 111 on July 30, 200, 137,105,00 won on July 30, 2004, Plaintiff 137,105,00 won on the instant store No. 112 on July 30, 2004, Plaintiff 136,67,000 won on July 7, 2004

2) On January 27, 2006, Plaintiff 1 paid the sales price above, and Plaintiff 2 paid KRW 91,218,700 out of the sales price from April 26, 2004 to May 30, 2005.

3) On August 18, 2004, Plaintiff 1, and Plaintiff 2, September 3, 2004, the location of each of the above-out stores was the location of each of the above-out stores and completed the registration of each real estate leasing business (However, the business registration certificate was indicated respectively as the heading office 15, 16, and 19 at the time of the sales contract).

4) On August 2006, the completion inspection of the commercial building of this case was completed, the non-party company transferred the keys to each of the instant stores so that the plaintiffs can use each of the instant stores according to the purpose of the sales contract of this case, and from that time, the plaintiffs used each of the instant stores.

On July 23, 2007, Plaintiff 1 leased the store Nos. 111 and 112 to Nonparty 1 with a deposit of KRW 5 million, monthly rent of KRW 1 million, and 12 months with a lease term fixed. Nonparty 1 subleted the store to Non-Party 1, a non-party 1, and used the store Nos. 111 and 112 in this case. From February 25, 2009, Nonparty 2 used each of the above stores with the permission of the Plaintiff 1 for free use from February 25, 2009.

Plaintiff 2, around August 2006, permitted the free use of the instant 115 store to Nonparty 3, and Nonparty 3 used the instant 115 store from that time until that time.

B. Acquisition of the defendant's ownership and execution of delivery

1) In order to secure loan claims against the non-party company, the defendant completed on September 7, 2006 the registration of provisional right to claim ownership transfer on September 7, 2006 and the registration of the creation of a mortgage over the maximum debt amount of KRW 8.45 billion on November 9, 2006, and the registration of the creation of a mortgage over the additional maximum debt amount of KRW 8.45 billion on November 9, 2006 and the registration of the establishment of a mortgage over the maximum debt amount of KRW 1.56 million on the establishment of a mortgage over the whole commercial building of this case including each of the stores of this case (hereinafter in relation to the execution of the above security right, only statements are

After the Defendant created a security right as above, the Defendant loaned a total of KRW 7.5 billion to the Nonparty Company on November 9, 2006, KRW 1.5 billion on November 10, 2006, KRW 200 million on November 10, 2006, and KRW 300 million on December 5, 2006.

2) As the non-party company failed to pay interest on the above loan from February 9, 2007, on May 8, 2007, the defendant completed the principal registration based on the registration of the above right to claim ownership transfer on the ground of the completion of trade reservation on February 9, 2007 with respect to each of the stores of this case. However, on July 30, 2007, Daejeon District Court 2007Kahap7519 filed against the non-party company against the defendant on January 3, 2008, the decision of recommending settlement that the above registration will be cancelled on January 3, 2008 became final and conclusive, the defendant applied for a auction of real estate rent based on the right to collateral security on January 2, 2008 at the Daejeon District Court 2008ta139 around the same month, each of the stores of this case on May 3, 208. The defendant acquired ownership of each of the above stores in the auction procedure, and subsequently acquired ownership of each of this case.

3) After February 18, 2009, the Defendant received an order for the delivery of real estate from the Daejeon District Court No. 2008tagi1691 against Y, the sub-lessee of the store No. 1111 and 112, and completed the delivery execution for the above store on May 13, 2009, upon receiving the execution clause for the transfer to Nonparty 2, the possessor of each of the above stores.

On the other hand, the defendant filed a lawsuit against the non-party 3 on February 23, 2009 against Daejeon District Court 2009Kadan9321, which is the name of the building, and the plaintiff 2 participated in the lawsuit for the non-party 3, and the above case is still pending in the appellate court.

2. The assertion and judgment

A. Summary of the parties' assertion

The plaintiffs have acquired damage claims equivalent to the sale price already paid to the non-party company since the obligation to transfer ownership under the sales contract of this case against the plaintiffs was not fulfilled by the defendant's creation and execution of the defendant's security right. Since the plaintiffs legitimately occupied each of the stores of this case from August 2006, they claim that there exists commercial lien, which is the right to attract each of the stores of this case, until the payment of the damage claims is made.

B. Determination

1) Determination as to Plaintiff 1’s claim

A right of retention is a right to retain an object, etc., in cases where a claim arising from an object, etc. of another person is due and due, until repayment is made (Article 320(1) of the Civil Act), and the right of retention is extinguished due to the loss of possession (Article 328 of the Civil Act): Provided, That in cases where a lien holder illegally depriveds his/her possession, and the possession of an object of a lien is restored by a lawsuit for the recovery of possession stipulated under Article 204 of the Civil Act (proviso of Article 192(2) of the Civil Act), such possession would not have been lost (Article 192(2) of the Civil Act). In addition, in such cases, the lien holder does not have the right to lease the object to another person unless the debtor or owner gives consent, and thus, the lending act by the lien holder infringes on the owner’s right of disposal, and thus, it cannot be deemed that the possession of the object of a lien by the lease or loan of use by the lien holder may not be asserted against the owner (see, e. 26).

The non-party company transferred keys to the plaintiff 1 to the plaintiff 1 for use of the store of 111 and 112 according to the purpose of the sale contract of this case immediately after the completion of the sale contract of this case. The plaintiff 1 entered into a loan agreement with the non-party 2 on February 25, 2009 on the store of 111 and 112, and the non-party 2 used the store of 111 and 112 until May 13, 2009 upon delivery of real estate from the plaintiff 1, the non-party 1 was not entitled to the plaintiff 1's right to the sale of this case's 3 and 4 as stated in Paragraph 1, but it cannot be viewed that the defendant acquired the plaintiff 1's right to the sale of this case's 101 and 112 as the non-party 2's right to the plaintiff 12 as the counter-party 1's owner of this case's real estate.

2) Determination as to Plaintiff 2’s claim

A) The nature of the commercial lien

Article 58 of the Commercial Code provides that the requirements for establishing commercial lien shall be established, ① secured claim shall be a claim arising out of a commercial activity between merchants, ② the possession of an article or securities through a commercial activity between the debtor and ③ the possession of an article or securities shall be owned by the debtor.

(1) Claim secured

① Plaintiff 2 asserts that, as the obligation to transfer the ownership of the store No. 115 of this case was impossible, there was a damage claim equivalent to the sale price, and that there was a commercial lien in order to secure the above claim.

On the other hand, commercial activities between merchants do not distinguish not only basic commercial activities but also ancillary commercial activities, and the type of secured debt also includes not only monetary claims, i.e., claims that can be converted into monetary claims, but also claims that can be converted into monetary claims, and according to the facts recognized in paragraph (1), Plaintiff 2 purchased a store of this case 15 from the non-party company, a profit-making corporation, as part of the preparation for the commencement of real estate leasing business. Accordingly, Plaintiff 2 acquired the qualification as a merchant at the time of the commencement of the preparation for commencement of the above opening business, since Plaintiff 2 purchased the store of this case from the non-party company as part of the preparation for the commencement of real estate leasing business, the sale contract of this case constitutes an ancillary commercial activity, and the obligation to transfer the ownership of Plaintiff 2 from the non-party company due to the sale contract of this case constitutes a damage claim equivalent to the sale price already paid to the non-party company, and thus, Plaintiff 2 acquired the damage claim corresponding to Plaintiff 2's claim against the non-party company.

(2) The debtor's ownership

The defendant asserts that the obligation to transfer ownership under the contract for sale in this case was impossible for the defendant to acquire ownership of the store No. 115 of this case and that the damage claim based on the plaintiff 2's non-performance impossibility was established at that time. Thus, as long as the damage claim asserted by the plaintiff 2 as the secured claim of this case was not the non-party company, the owner of the store No. 115 of this case, but the defendant, there is no room for establishing the commercial lien on the store No. 115 of this case.

In light of the empirical rules or the concept of transaction in social life, the fact that performance of an obligation is impossible is not simply an absolute and physical impossibility, but a creditor is unable to expect the realization of the obligor’s performance (see, e.g., Supreme Court Decision 2005Da39211, Jun. 16, 2006). Even if a person liable for registration of ownership transfer for a third party’s real estate has completed registration of ownership transfer, if the person liable for registration of ownership transfer has no means to repay the obligation, the obligation for registration of ownership transfer is impossible unless there are special circumstances (see Supreme Court Decision 91Da8104, Jul. 26, 191). Meanwhile, Article 4(2) of the Act on Provisional Registration, etc. provides that the obligee shall pay liquidation money to the obligor after the expiration of the period of liquidation, and that the registration of security transfer is null and void if it is made within the period of provisional registration under the provisions of Article 40 of the Act on Security, etc., even if the obligor has already completed registration of ownership transfer of real estate for security.

However, the non-party company completed the provisional registration of the above provisional registration on May 8, 2007 with respect to the store No. 115 of this case, and completed the provisional registration of the above provisional registration on the store No. 115 of this case, but did not pay interest on the above loan. The non-party company filed a lawsuit against the defendant on July 30, 2007 in light of the facts recognized in Paragraph 1 of this Article and the social common sense, it is reasonable to view that the non-party company was unable or extremely difficult to implement the procedure for ownership transfer registration under the name of the plaintiff 2 by cancelling the provisional registration of the defendant as to the store No. 115 of this case and the establishment registration of the neighboring mortgage on the store No. 115 of this case at the time of filing a lawsuit against the defendant. Therefore, the non-party company's obligation for ownership transfer registration of the plaintiff company No. 2 of this case had already been filed at the time of the above lawsuit against the plaintiff company's non-party company's non-party 15 of this case.

(3)Possession

(A) On August 2006, Plaintiff 2 used the said store by putting the keys to the store No. 115 of this case from Nonparty 2 for free use by Nonparty 3. As seen in Paragraph 1, Plaintiff 2 is deemed to have occupied the store No. 115 of this case through Nonparty 3 before the decision to commence the sale of this case was rendered. Such possession was based on the sales contract of this case, which is a commercial activity, and Plaintiff 2 acquired possession of the store No. 115 of this case on the ground of commercial activity.

(B) Although the Defendant asserts that the possession of Plaintiff 2 on the store No. 115 of this case was severed, the evidence that seems to be contrary to the facts acknowledged in paragraph (a) is insufficient to reverse the judgment on whether Plaintiff 2’s possession of the store No. 115 of this case is possessed.

① The report on the investigation of the current status of the real estate prepared in the above voluntary auction procedure (Evidence B 2) states that “No household that has been transferred to the Dong office by the closure of the contract, has no household that has been confirmed as having been transferred to the Dong office in question, the pertinent tax office does not have to verify the current status of registered matters, etc., and the attachment of the notice on possession and lease, the relationship between possession and lease, and the attachment of the notice.” However, in light of the fact that it is not contrary to Plaintiff 2’s possession and the closure of the contract, it may be deemed that Plaintiff 2 managed the store of this case 15.

② According to the evidence No. 6-4 (Provisional Disposition Report on Real Estate), the defendant, as to the store No. 115 of this case, had the possessor as to the store No. 115 of this case, not Nonparty 3, but Plaintiff 2, the Daejeon District Court 2007Kahap879, and had the execution officer enforced compulsory execution on July 24, 2007 upon the above decision. However, even according to the statement No. 6-4 of the evidence No. 6-4, the execution officer closed the store No. 115 of this case and opened it with the key door, and confirmed that Plaintiff 2 occupied Plaintiff 2 through the defendant’s agent, the creditor, among Plaintiff 2 and Nonparty 3, had not participated, it can be deemed that Plaintiff 2 managed the store of this case.

③ According to the evidence Nos. 5-1 and 2-2 of the above evidence, the defendant requested the Japanese Appraisal Corporation to appraise the commercial building of this case prior to the execution of loan to the non-party company. On October 10, 2006, the whole commercial building of this case was in the official condition, and the lease relation was investigated as being non-existent. However, considering the purport of the whole pleadings in each of the above evidence Nos. 3-3, No. 16-2, and Nos. 17-2, the above on-site investigation on Oct. 10, 2006 was conducted for the purpose of determining the reasonable appraised price for the whole sale of the commercial building of this case. According to this, it is recognized that the above appraisal institution used the expression "public room" in the sense that there was no commercial activity, and even if the above appraisal institution occupied the shop of this case, it was insufficient to deny the on-site investigation of this case at the time of the plaintiff 15.

(4) Illegal possession

The defendant asserts on May 8, 2007 that the transfer of possession by the non-party company to plaintiff 2 after the provisional registration was made on the basis of a provisional registration to the plaintiff 2 cannot be set up against the defendant on the ground of the right of retention because it reduces the exchange value of the object, and thus it cannot be set up against the buyer in the auction procedure because it reduces the exchange value of the object.

In a case where an obligor acquired a lien by transferring the possession of the construction price to the creditor regarding the said real estate after a compulsory decision to commence auction has been made on the real estate, such as a building owned by the obligor, and the seizure takes effect, the transfer of such possession goes against the prohibition of disposition of seizure under Articles 92(1) and 83(4) of the Civil Execution Act, since it constitutes a disposal act which might reduce the exchange value of the object and thus the transfer of such possession goes against the effect of prohibition of seizure under Articles 92(1) and 83(4) of the same Act, the possessor cannot oppose the successful bidder in the auction procedure on the ground of the above lien (see Supreme Court Decision 2005Da22688, Aug. 19, 2005). However, if he acquired possession after the seizure takes effect, he cannot oppose the successful bidder in the auction procedure, which is due to the effect of seizure under the Civil Execution Act, and thus, the defendant's assertion that

(5) Sub-committee

Therefore, the plaintiff 2 has a commercial lien that covers the claim for damages against the non-party company as the secured claim with respect to the store No. 115 of this case.

B) Determination on the claim to extinguish lien

In addition, the defendant asserts that the lien holder may lease the object only with the consent of the debtor, and that the plaintiff 2 used the store of this case 115 without such consent by the non-party 3. Thus, the plaintiff 2 claims the extinction of the lien in accordance with Article 324 (2) and (3) of the Civil Code on behalf of the non-party company.

On August 206, 2006, immediately after the completion of the commercial building of this case, the non-party company transferred the key of each of the instant 115 stores to the non-party 2 so that it can use the instant 15 stores, and the plaintiff 2 entered into a loan agreement with the non-party 3. The non-party 3 acquired the ownership of the instant 115 shop before September 25, 2008, and used the instant 115 store from around August 25, 2006, which the defendant acquired the ownership of the instant 115 store, to the present date, according to the above facts of recognition under Paragraph 1, the plaintiff 2 used the instant 115 store with the consent of the non-party company, the debtor, and therefore, the defendant's assertion is without merit.

C) Sub-determination

As long as the Defendant, while denying Plaintiff 2’s right of retention, sought the delivery of the instant 115 shop against Nonparty 3, a direct possessor, the Plaintiff 2 has a benefit to seek confirmation of the said right of retention. Therefore, Plaintiff 2’s claim is with merit.

3. Conclusion

Therefore, the plaintiff 1's claim is dismissed as it is without merit, and the plaintiff 2's claim shall be accepted as reasonable. Since the part against the plaintiff 1 among the judgment of the court of first instance is unfair with different conclusions, the part against the plaintiff 1 among the judgment of the court of first instance accepted the defendant's appeal against the plaintiff 1 and the part against the plaintiff 1 among the judgment of the court of first instance revoked the part against the plaintiff 1 among the judgment of the court of first instance and dismissed the plaintiff 1's claim against the plaintiff 2, and the part against the plaintiff 2 is just in conclusion, and it

[Attachment]

Judges Lee Jon-hun (Presiding Judge)