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(영문) 서울고등법원 2020.04.16 2019나2012211
동산인도
Text

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. The reasoning for this part of the reasoning is as follows, and the corresponding part of the judgment of the court of first instance ("1. Basic Facts" of the judgment of the court of first instance) is the same as that of the judgment of the court of first instance, except for dismissal or deletion as follows. Thus, this part is cited pursuant to the main sentence of Article 420 of the Civil Procedure Act

Part II of the judgment of the first instance, "Plaintiff A, Inc. (hereinafter referred to as "Plaintiff A")" shall be incorporated into "Plaintiff A, Inc. (hereinafter referred to as "Plaintiff").

Part 3 of the judgment of the first instance (hereinafter referred to as "each movable of this case") No. 5 (hereinafter referred to as "each movable of this case") shall be added to "each movable listed in the attached list" (hereinafter referred to as "each movable of this case").

Part III through 4 of the first instance judgment shall be deleted. Part III through 8 shall be deleted.

2. Judgment on the plaintiff's claim

A. The reasoning for this part of the judgment on the instant safety defense is as follows: (a) the corresponding part of the judgment of the court of first instance (the judgment on the instant safety defense of the judgment of the court of first instance is identical to that of the judgment of the court of first instance). Therefore, it is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act

B. Decision 1 on the merits of the Plaintiff’s assertion 1) Since the Defendant occupied and used each of the instant movables without a legitimate title through an invalid public sale procedure as follows and infringed on the Plaintiff’s ownership, the Defendant is obligated to deliver each of the instant movables to the Plaintiff. As such, the invalidation of the public sale procedure due to the nonperformance of the requirements for public sale. ① The Defendant purchased each of the instant movables through the execution of the security right during the public sale procedure, but the nonperformance of the obligation by the Plaintiff was in conflict with the lender and AB Co., Ltd. (hereinafter “AB”), and the Plaintiff’s obligation to pay the construction price to AB was in a situation where it is possible to fully repay the payment due to the payment in substitutes

(2) The defendant is not the first beneficiary and is not entitled to file an application for public auction, and AB joins the lender's agreement.

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