[Defendant-Appellee-Appellant] Cheongmamari Co., Ltd. (Law Firm Cheongju, Attorney Cho Jong-won, Counsel for defendant-appellant-appellee-appellant)

Defendant (Attorney Kim Jong-il, Counsel for the defendant-appellant)

October 18, 2017

1. The Defendant’s voluntary auction on April 4, 2017, upon the registration of the Incheon District Court in relation to the United States Co., Ltd. on March 10, 2017, at the time of the registration of the establishment of a neighboring mortgage (No. 103) on March 10, 2017.

2. This Court approves a ruling of the suspension of compulsory execution on August 31, 2017 with respect to the case for which an application for the suspension of compulsory execution was filed by this Court.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

The main text is as follows (the date of voluntary auction is indicated as "the date of April 23, 2014." However, this appears to be a clerical error, and the effective date of the decision to commence voluntary auction for which the plaintiff seeks no permission is made is " April 4, 2017," which is the date of the registration of the decision to commence the auction, and thus, the plaintiff's claim is decided as per Disposition).

1. Basic facts

A. The vessels listed in the separate sheet (hereinafter “instant vessels”) were built before July 29, 2005. Nonparty 1 and Nonparty 2 completed the registration of initial ownership on each of the instant vessels on July 29, 2005.

B. On January 10, 2007, Nonparty 1 and Nonparty 2 completed the registration of ownership transfer on the instant vessel on the ground of transfer on January 1, 2007.

C. On May 14, 2010, SPP completed the registration of ownership transfer on the instant vessel on March 17, 2010 with respect to the instant vessel to U.S.S. Co., Ltd. (hereinafter “U.S.”).

D. Around 2012, Nonparty 5 filed an application for compulsory execution of movable property against the instant vessel, etc. (hereinafter “voluntary execution of movable property”). The enforcement officer, upon Nonparty 5’s application, sold the instant vessel, etc. by door auction on June 19, 2013 after seizing the instant vessel, etc., upon Nonparty 5’s request. Nonparty 3 purchased the instant vessel, etc. during the provisional auction procedure, paid the purchase price, and received delivery of the instant vessel, etc. from the enforcement officer. However, Nonparty 3 did not complete the registration of ownership transfer on the instant vessel. On June 20, 2013, the enforcement officer purchased and transferred the instant vessel, etc. from Nonparty 3.

E. Around March 17, 2010, U.S.S. purchased the instant vessel from SPP and fixed it on the water, and used the instant vessel for mooring vessels, etc. from around that time to June 19, 2013. The Plaintiff purchased the instant vessel on June 20, 2013, and installed the instant vessel on the water and used it for mooring vessels, etc.

F. On March 10, 2017, U.S. dollars completed the registration of creation of a mortgage consisting of the maximum debt amount of KRW 37,000,000 with respect to the instant vessel (hereinafter “mortgage”).

G. On March 29, 2017, the Defendant filed an application for voluntary auction on the instant vessel based on the instant collateral security (hereinafter “instant voluntary auction”) with the Cheongju District Court Decision 2017Ma659 around 2017, and the registration of the decision on voluntary auction was completed on April 4, 2017 (hereinafter “instant voluntary auction”).

H. The instant vessel is a barge of 144 gross tonnage.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 4, purport of the whole pleadings

2. Judgment on the plaintiff's claim

A. Relevant legal principles

1) The term “ship” means a kind of ship that can be used for navigation on or under the water. A vessel has a whistle, a sailing vessel, a barge, a vessel propelled by an engine (agency) and a sailing vessel is a vessel propelled by sail, a barge propelled by sail, and a vessel navigated by being towed or pushed by another vessel due to lack of self-traffic capacity (self-power navigation capacity) (Article 1-2(1) of the Ship Act).

2) The registration of a ship shall be otherwise prescribed by another Act (Article 8(4) of the Ship Act). The ship techniques shall apply to a baseline with a gross tonnage of not less than 20 tons, sailing ship, and barge with a gross tonnage of not less than 100 tons: Provided, That the ship techniques shall not apply to a barge fixed on the water to be used for mooring, storing, etc. among a barge with a gross tonnage of not less than 20 tons, which is installed for the purpose of mooring, storing, etc. (Article 2 of the ship techniques

3) The registration of a ship shall be made with respect to the establishment of ownership, mortgage, right of lease, preservation, transfer, change, restriction on disposal, or extinction (Article 3 of the Ship Registry). In cases of a ship eligible for registration, the transfer of ownership shall take effect only by agreement between the parties concerned: Provided, That where such ship is destroyed, sunken, or dismantled unless it is recorded in the certificate of ship's nationality (Article 743 of the Commercial Act). When a ship is lost, sunken, or its existence is unclear for 90 days (not less than 6 months in cases of a fishing vessel) when it loses the nationality of the Republic of Korea, a ship is not governed by Article 2 of the Ship Registry Rule, a registered titleholder shall apply for the cancellation of registration (Article 6 of the Ship Registry Rule, Article 21(1) of the Ship Registration Rule). Where a ship is destroyed, sunken, or dismantled, a ship becomes disqualified, a ship becomes disqualified as a ship prescribed in each subparagraph of Article 26 of the Ship Act, and its existence is not clear for 90 days, a shipowner shall apply for cancellation within 20 days.

4) Compulsory execution against a vessel that can be registered shall be governed by the provisions on compulsory auction of real estate (Article 172 of the Civil Execution Act). Accordingly, even if it falls under the concept of a vessel, it is not merely a subject matter of ship execution, but only a vessel which can be registered shall be subject to ship execution.

5) Article 2 of the Ship Act and Article 743 of the Commercial Act and Article 172 of the Civil Execution Act apply to a barge for mooring ships, i.e., a barge with a gross tonnage of not less than 20 tons which is fixed on the water to be used for mooring ships, storage ships, etc. (hereinafter “ship mooring ships, etc.”), and Article 188(1) of the Civil Act does not apply to the change in the rights pertaining to the above mooring ships, etc., and thus, the delivery of a barge for mooring ships, etc. takes effect by applying Article 188(1) of the Civil Act on the effect of change in real rights pertaining to movable property, and compulsory execution against the above mooring ships, etc., which are movable property, is in accordance

B. Determination on the cause of the claim

Examining the facts acknowledged in the above 1. In light of the legal principles as seen earlier, from March 17, 2010, the instant vessel became a non-registered vessel upon being equipped with a barge fixed on the water to be used for mooring the vessel. Therefore, the instant vessel transferred its ownership in succession to Nonparty 3 and the Plaintiff, according to the preceding movable property compulsory execution and sale, and the Plaintiff lawfully acquired the ownership of the instant vessel. Accordingly, the instant vessel is not the owner of the instant vessel, and the registration of establishment of establishment of the instant neighboring ship that was established by the United States Republic of Korea to the Defendant is null and void. Therefore, the instant voluntary auction is based on a null and void collateral, and thus, it shall be dismissed.

C. Judgment on the defendant's argument

1) The Defendant asserts that, even if the instant vessel was temporarily fixed, the instant vessel may not be manufactured and installed so as to make it impossible to move on the premise that it will be used for mooring and storing vessels from the beginning, and that it can be used for navigation at any time on the water as it is impossible to move from the vessel to be used for navigation, and that the vessel’s techniques should be applied, and furthermore, the provisions on compulsory auction of real estate should be complied with. As such, Nonparty 3’s purchase of the instant vessel in accordance with the compulsory execution procedure of movable property is null and void due to a compulsory execution procedure null and void in violation of a duty jurisdiction, and also the Plaintiff

The purpose of the aforementioned relevant Acts and subordinate statutes is that, as seen earlier, a barge shall be registered only within a certain scope of ships among movable property or ships that can be used for navigation on the water, and shall follow the procedure for compulsory auction by real estate. Even if a barge is a ship, if the owner of a barge installs a barge fixed on the water surface to continue to use it for navigation on the water, from that time when the barge is unable to be registered, the barge shall be subject to cancellation registration pursuant to Article 21(1) of the Rules on Registration of Ships, and a ship shall be subject to change in its rights, and shall follow the method of compulsory execution against movable property, and compulsory execution against a ship shall also follow the method of compulsory execution against movable property. This does not change even if the owner of a barge installed a barge fixed on the water surface to continue to use it for mooring on the water and neglected the duty of cancellation registration.

In other words, according to the above recognition as to the instant case, it is reasonable to view that, around March 17, 2010, U.S.S. vessel started to purchase the instant vessel from SPnB and fix it on the water and to use it for mooring vessels, etc. around March 17, 2010, the instant vessel was a barge fixed on the water surface to continue to be used for mooring vessels, and therefore, the instant vessel was an unregistered vessel. Accordingly, the instant vessel is deemed to have become a vessel. Accordingly, the instant vessel does not apply the ship techniques, but its compulsory execution against the instant vessel should comply with the provisions concerning the compulsory execution of movable property. The Defendant’s

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.

(attached Form omitted)

Judges Ha Sung-woo