2012Ra385 Order to Deliver immovables

A Stock Company

representative director ChoB

C Stock Company

Representative In-house Directors D

Attorney Lee Lee-sung, Counsel for the defendant-appellant

Changwon District Court Order 2012Ma748 dated October 15, 2012

March 18, 2013

1. The appeal of this case is dismissed.

2. Costs of appeal shall be borne by the appellant;

The decision of the first instance shall be revoked. The applicant's application for the real estate delivery order of this case shall be dismissed.

1. Basic facts

According to the records, the applicant has acquired each real estate indicated in the separate sheet in the auction procedure of Changwon District Court 201ta, 8061, which was awarded a successful bid, and the respondent has occupied and used each of the above real estate before the commencement of the auction procedure.

2. The assertion of the respondent and the judgment on such assertion

A. Respondent's assertion

The respondent is the lessee of the real estate (factory building) stated in Paragraph 2 of the attached Form No. 2, and the above factory building was the factory building for the mobile phone processing business, and the respondent spent KRW 92,830,00 as the beneficial cost for the increase of the value of the above factory building while carrying out the mobile phone processing business, and the respondent has the commercial lien, etc. on the above factory building. Therefore, the respondent claims that the applicant has the right to claim the return of the above beneficial cost or the right to claim the attached expense, so the respondent's application for the order of delivery of the real estate of this case

B. Determination

(1) Whether the applicant can be deemed to have the right to claim the return of beneficial expenses or the right to claim the attached article

The court's explanation and determination on this part are the same as the fact of recognition and the statement of judgment in the column for the reasons of the decision of the court of first instance.

(2) Next, although the respondent had a factory building for the mobile phone processing business as alleged by the respondent, and the respondent who is the merchant has a commercial lien after making disbursement of 92,830,000 won for the above factory building as beneficial costs, the commercial lien holder may set up against the obligee's commercial lien when the obligee's commercial lien has already been established under the circumstances where prior mortgage was established on the real estate owned by the obligor, the commercial lien holder may set up against the obligor and the obligor, or against the purchaser who acquired the real estate through the voluntary auction procedure based on prior mortgage. However, in relation to the purchaser who acquired the real estate through the prior mortgage or the prior mortgage, the respondent cannot set up against the commercial lien (see Supreme Court Decision 2010Da57350, Feb. 28, 2013). According to the record, the respondent asserted that the applicant acquired the commercial lien after making disbursement of the beneficial costs of the above factory building around February 3, 2010, the respondent asserted that each of the above real estate had been awarded the bid price during the auction procedure within each of each of this case.

3. Conclusion

Therefore, the respondent is obligated to deliver each of the real estate of this case to the applicant, and the decision of the court of first instance which accepted the applicant's application for the order of delivery of real estate of this case is just, and the respondent's immediate appeal of this case is dismissed as it is without merit. It is so

March 18, 2013

Judge Senior Judge;

Judges Lee Jae-hwan

Judges Yellow Jin-Jin