[1] In a case where a judgment of delivery of an article against the possessor of the article becomes final and conclusive, whether the possessor has a substantive obligation to deliver the article to the other party due to the effect of the judgment, or whether the possession of the article becomes unlawful due to the extinguishment of a legitimate possessor’s right (negative), and whether the res judicata of the above judgment of delivery extends to a lawsuit claiming compensation for damages caused by an illegal possession of the article

[2] The case holding that in a case where Gap corporation established a new installation at the construction site according to the subcontract agreement concluded with Eul corporation and notified Eul corporation of the termination of the subcontract and suspended the construction due to Eul corporation's commencement of rehabilitation procedures, Eul corporation requested Gap corporation to dismantle the above establishment while Eul corporation was performing construction with permission for the resumption of construction, and Gap corporation was transferred to another place to refuse it and not remove the above establishment, and Gap corporation rejected it and transferred it to another place. Gap corporation was awarded a favorable judgment by filing a lawsuit against Eul corporation's manager to seek delivery of the above establishment, and Eul refused to deliver the above establishment and illegally occupied it despite the delivery judgment, and sought compensation, etc. against Eul corporation's manager, the judgment below acknowledged Eul corporation's liability for damages for the period from the date following the delivery judgment, on the ground that the possession of the above establishment was illegal, on the ground that Eul corporation's possession of the above establishment until the return of possession of the Gap corporation's possession, on the ground that the judgment below acknowledged Eul's liability for damages due to execution judgment and illegal possession.

[3] When a public notice on the decision to terminate rehabilitation procedures takes effect (i.e., the day following the date of publication in the public notice or following the date of public notice in the manner prescribed by the Supreme Court Regulations), and whether a custodian’s authority ceases to exist at the same time when the decision to terminate rehabilitation procedures

[1] When a judgment of delivery of an article against a possessor becomes final and conclusive, the possessor cannot contest the other party to the judgment of delivery against the existence of the right to claim delivery of the article, and cannot refuse the delivery of the article on the ground of a legitimate possessory source who could have asserted the other party in the lawsuit, until the closure of arguments in the court of fact-finding in the delivery lawsuit. However, the judgment ordering the performance of an obligation does not affect substantive legal relations. Thus, the possessor does not have a substantive obligation to deliver the article to the other party in the judgment based on the validity of the judgment of delivery, or possession of the article from that time on the ground of the extinguishment of the legitimate possessory power. Furthermore, even if the judgment ordering the possessor of the article to deliver the article becomes final and conclusive, the judgment does not affect the existence of the right to claim delivery of

[2] The case holding that in case where Gap corporation established the above facilities at the construction site according to the subcontract agreement with Eul corporation, but notified Eul corporation's termination of subcontract agreement and suspended construction due to Eul's commencement of rehabilitation procedures, Eul corporation requested Gap corporation to dismantle the above facilities and transferred them to another place to refuse it and not remove the above facilities, and Gap corporation failed to take part in the lawsuit against Eul corporation's manager for delivery of the above facilities, and Gap corporation refused to deliver the above facilities and illegally occupied them despite the delivery judgment, and sought compensation for damages against Eul corporation's manager, the court below's judgment cannot be deemed as unlawful since delivery judgment does not change any of the substantive legal relations with the above facilities just because delivery judgment became final and conclusive, and it cannot be concluded that Gap's damage was caused to Eul corporation since Eul's possession of the above facilities was not done by the time the delivery judgment became final and conclusive, and it cannot be readily concluded that Gap corporation's illegal possession of the above facilities did not directly affect the above judgment's claim for damages due to the above illegal act and it cannot be concluded that Gap's claim for delivery and return of the above facilities.

[3] According to the Debtor Rehabilitation and Bankruptcy Act, upon the commencement of repayment according to the rehabilitation plan, the court shall decide to discontinue the rehabilitation procedure upon the application of the custodian, etc. or ex officio (Article 283(1)), and publicly notify the main text thereof and a summary of the grounds thereof (Article 283(2)). The public notice of the decision to terminate the rehabilitation procedure becomes effective on the day following the date indicated in the Official Gazette or following the date public notice is given in the manner prescribed by the Supreme Court Regulations (Article 9(2)). The effect of the decision to terminate the rehabilitation procedure takes effect, and the debtor simultaneously recovers the right to perform duties

[1] Article 750 of the Civil Act, Article 216(1) of the Civil Procedure Act / [2] Article 750 of the Civil Act, Article 216(1) of the Civil Procedure Act / [3] Articles 9(2), 56, 74(1), and 283(1) and (2) of the Debtor Rehabilitation and Bankruptcy Act

U.S. Industrial Co., Ltd. (Law Firm Sejongwon, Attorneys Yoon-young et al., Counsel for the plaintiff-appellant)

The administrator of the rehabilitation debtor ELAD Construction Corporation, the administrator of the non-party 1's lawsuit taking over the lawsuit (the former trade name: ELAD Construction Corporation) (Law Firm Eul branch, Attorneys Lee Gyeong-hoon et al., Counsel for the plaintiff-appellant)

Debtor Rehabilitation Debtor Corporation (former Trade Name: ELA Construction Corporation), the administrator of Yasi Construction Corporation (Law Firm B, Attorney Park Jong-young, Counsel for the defendant-appellant)

Seoul High Court Decision 2013Na75986 decided June 12, 2014

The part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the Seoul High Court. The plaintiff's appeal is dismissed. The defendant's motion for taking over the lawsuit is dismissed. The expenses incurred in taking over the lawsuit are borne by

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Basic factual basis

The reasoning of the lower judgment and the record reveal the following facts.

A. On June 17, 2010, the Plaintiff, among the new construction works by △△△△△△△△△△ in the ○○ Station, subcontracted the instant subcontract (hereinafter “instant subcontract”) and installed each object listed in the [Attachment 1] list of the lower judgment (hereinafter “instant facilities”) at the construction site, which is a soil-frame installation at the construction site.

B. On April 1, 2011, the Defendant received a decision to commence rehabilitation procedures as Seoul Central District Court 201Mo34, the Defendant notified the Defendant that the instant subcontract will be terminated on the grounds of the Defendant’s commencement of rehabilitation procedures, and the instant construction was suspended. On April 15, 201, the Defendant requested the Plaintiff to dismantle the instant facilities established by the Plaintiff on May 30, 201, when performing construction with the permission for resumption of construction granted from the Seoul Central District Court on April 15, 201, and June 2, 2011. However, the Plaintiff refused such request and did not remove the instant facilities.

On the other hand, on June 2, 2011, the Seoul Central District Court rendered a provisional disposition prohibiting possession and transfer of corporeal movables and disposal of the instant facilities (hereinafter “provisional disposition of this case”) upon the Plaintiff’s request.

C. On June 5, 2011 and August 18, 2011, Nonparty 2 asserted that the remainder of the construction cost should be claimed, and at the entrance of the construction site of this case, the Plaintiff installed a mid-term season listed in the attached Table 2 of the lower judgment (hereinafter “instant mid-term season”) and made it impossible for the Plaintiff to enter or depart from the site ( Nonparty 2 was sentenced to a fine of KRW 2.5 million for the criminal facts that interfered with the Defendant’s construction work, and the said judgment became final and conclusive on March 12, 2012).

D. On July 15, 2011, the Defendant entered into an agreement with Nonparty 3 (△△△) to keep the instant facilities and equipment in Songpa-gu Seoul (hereinafter “instant storage place”) at KRW 3,300,000 per month, and transferred the instant facilities and equipment to the instant storage place on or after August 16, 201 with the permission of an execution officer.

E. From September 201, the Plaintiff requested the Defendant to deliver the instant facilities and the equipment during the season, but the Defendant refused the Plaintiff’s request due to the withdrawal of the application for provisional disposition and the payment of storage fees. On November 8, 2011, the Plaintiff filed a lawsuit against Nonparty 4, a custodian, at the time of the Defendant, seeking the delivery of the instant facilities and the equipment during the season, and received a favorable judgment (Seoul Central District Court Decision 201Da16831, May 24, 2012; hereinafter “instant extradition judgment”), and on June 26, 2012, the said judgment became final and conclusive.

F. On July 18, 2012, the Plaintiff filed the instant lawsuit against Nonparty 1 at the time of the Defendant’s custodian Nonparty 1, seeking compensation for damages incurred by illegal possession of the instant facilities and the climate, or restitution of unjust enrichment on the ground that the Defendant refused to deliver the instant facilities and the climate despite the Plaintiff’s request and the India judgment.

G. On October 6, 2012, the Plaintiff collected the instant facilities and equipment on October 6, 2012 while continuing the first instance court of the instant lawsuit.

H. On April 28, 2015, during the period of final appeal, a decision to terminate rehabilitation procedures against the Defendant was publicly announced, and the Defendant taken over the instant lawsuit on May 26, 2015.

2. The part concerning the claim for damages due to illegal acts in the judgment below

A. The judgment of the court below

For the following reasons, the lower court determined that the Defendant cannot be deemed to have illegally occupied the instant facility before the judgment of extradition became final and conclusive, but was liable for damages incurred therefrom since the Defendant illegally occupied the instant facility after the judgment of extradition became final and conclusive. Meanwhile, the lower court determined that there was no liability for damages on the ground that the Defendant’s possession or storage of the instant equipment cannot be deemed unlawful.

(1) The instant subcontract was terminated, and accordingly, the Plaintiff is obligated not to interfere with the progress of building construction by collecting the instant facilities. The Defendant, who did not collect the instant facilities from the Plaintiff upon the Defendant’s request for removal of the remaining construction cost, moved the instant facilities to another place for the progress of construction. It cannot be deemed that the Defendant interfered with the Plaintiff’s collection of the instant facilities or illegally occupied the instant facilities before the instant extradition judgment becomes final and conclusive. However, as the India judgment became final and conclusive, the Defendant is obligated to deliver the instant facilities to the Plaintiff, and thus, it is unlawful to refuse the Plaintiff’s request for delivery after the India judgment became final and conclusive, and to occupy the instant facilities.

(2) The Plaintiff’s installation of the instant flag is unlawful as interfering with the Defendant’s construction, and it is justifiable that the Defendant moved the instant flag to another place for the purpose of carrying out the construction work. Since the Plaintiff is obliged to bear the expenses for the storage of the instant climate, it cannot be deemed that the Defendant’s possession or custody of the instant climate is unlawful on the ground that the Plaintiff failed to recover the instant climate due to its failure to pay the said expenses. Moreover, according to the res judicata effect of the extradition judgment, the Defendant’s possession of the instant climate constitutes an illegal possession.

B. Supreme Court Decision

(1) Whether a tort was established by the date the extradition judgment of this case became final and conclusive (Plaintiff’s grounds of appeal Nos. 1 and 2)

First of all, the judgment of the court below concerning the defendant's tort liability before the extradition judgment of this case becomes final.

According to the above facts, the Plaintiff suspended the instant construction while notifying the Defendant of the termination of the instant subcontract, and the Defendant requested the Plaintiff to dismantle the instant facilities, which are soil facilities installed by the Plaintiff. Accordingly, the instant subcontract relationship between the Plaintiff and the Defendant can be deemed terminated. Moreover, even if the Plaintiff did not recover the instant facilities and the equipment from the Plaintiff to another place so as not to interfere with the new construction of the building, it cannot be deemed an illegal possession even if the Defendant transferred them to the other place.

In so determining, contrary to the Plaintiff’s grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the subject of removal of facilities and res judicata of a final and conclusive judgment upon termination of a subcontract.

(2) Whether tort was established from the day after the extradition judgment of this case became final and conclusive (Plaintiff’s ground of appeal Nos. 1 and Defendant’s ground of appeal No. 1)

(A) Once a judgment of delivery of an article against the possessor becomes final and conclusive, the possessor cannot contest the other party to the judgment of delivery against the existence of the right to claim delivery of the article, and cannot refuse the delivery of the article on the ground of the lawful source of right that could have been alleged to the other party in the lawsuit. However, the effect of the judgment ordering the performance of an obligation does not affect the substantive legal relationship. Thus, the possessor does not have a substantive obligation to deliver the article to the other party in the judgment based on the validity of the judgment of delivery, or possession of the article from that time on the ground that the lawful source of right is extinguished. Furthermore, even if the judgment ordering the possessor of the article to deliver the article becomes final and conclusive, the judgment does not affect the existence of the right to claim delivery of the article, and the res judicata effect of the judgment

(B) In light of the aforementioned legal doctrine, the following conclusion can be derived with respect to the instant facilities.

Since the extradition judgment of this case does not change any substantive legal relationship with respect to the facilities of this case due to the extradition judgment of this case, just because the extradition judgment of this case became final and conclusive, it cannot be deemed that the defendant's possession of the facilities of this case was unlawful from the day after the extradition judgment became final and conclusive and the damage to the plaintiff was caused to the plaintiff. The defendant's failure to deliver the facilities of this case is not immediately determined as tort, and therefore, it cannot be readily concluded as tort, and therefore, the plaintiff suffered any damage not to use or profit from the facilities of this case. The effect of the judgment is only limited to the existence of the right to claim delivery of the facilities of this case, and it does not affect the claim for damages due to illegal possession of the facilities of this case

Therefore, the lower court should have deliberated on the requirements for establishing tort, such as the Defendant’s intentional act or negligent act regarding the possession of the instant facilities during the above period, and should have determined the Defendant’s liability for damages.

Nevertheless, the lower court, without conducting any particular deliberation as to the elements for establishing tort, found the Defendant’s possession of the instant facilities from the day following the extradition judgment became final and conclusive to the time the Defendant’s possession of the instant facilities was unlawful and recognized as liability for damages for the period from the time the Plaintiff’s possession was returned to the Plaintiff. In so determining, the lower court erred by misapprehending the legal doctrine on the validity of the performance judgment and liability for damages

(C) In relation to the period during which the Plaintiff was unable to recover the period due to the Plaintiff’s failure to pay expenses for the storage of the period during which the Plaintiff was to pay, and thus, the Defendant’s possession or storage of the period during which the Plaintiff was to take place is not illegal even after the date following the final judgment of the India became final and conclusive, and it cannot be deemed that the Defendant’s possession of the period during which the period during which the Plaintiff was to take place was illegal according to the res judicata effect of the judgment of the India.

Such judgment below is justifiable in light of the above legal principles. In so doing, contrary to what is alleged in the Plaintiff’s ground of appeal, the lower court did not err by misapprehending the legal doctrine on res judicata and tort liability.

3. The part of the lower judgment regarding the claim for restitution of unjust enrichment

The Plaintiff filed an appeal against the Plaintiff on the part of the lower judgment against the Plaintiff, but did not state the grounds of appeal on the petition of appeal or the appellate brief.

4. Determination on the application for taking over the lawsuit by the defendant applicant for taking over the lawsuit

On May 8, 2015, the defendant's successor to the lawsuit filed a motion to resume the lawsuit with this court on the ground that he/she is a new administrator of the defendant who is the debtor.

According to the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”), when repayment pursuant to the rehabilitation plan commences, the court shall decide to discontinue the rehabilitation procedure upon receiving an application filed by the custodian, etc. or ex officio (Article 283(1)), and publicly notify the main text thereof and a summary of the grounds thereof (Article 283(2)). The public notice of the decision to terminate the rehabilitation procedure becomes effective on the day following the date indicated in the Official Gazette or following the date public notice is given in the manner prescribed by the Supreme Court Regulations (Article 9(2) of the Debtor Rehabilitation Act). The effect of the decision to terminate the rehabilitation procedure takes effect at the same time as the debtor recovers the right to perform duties

According to the records, the above Seoul Central District Court 201 Ma34, Apr. 28, 2015, which was pending in the court of final appeal, can be known to the fact that the decision to terminate rehabilitation procedures in the above Seoul Central District Court 2011 Ma34, supra, takes effect on April 29, 2015, and accordingly the power of the administrator of the defendant Claimant as the administrator of the defendant Claimant is extinguished. Accordingly, the application to resume a lawsuit in this court on the premise that the defendant Claimant is qualified to take over the lawsuit of this case on May 26, 2015, is unlawful (the same as mentioned above).

5. Conclusion

Without further proceeding to decide on the remainder of the Defendant’s remaining grounds of appeal, the part against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed as it is without merit. The Plaintiff’s dismissal of a motion to resume the lawsuit by the Defendant, and the cost incurred by the motion to resume the lawsuit is borne by the Defendant’s

Justices Lee Dong-won (Presiding Justice)