Delivery, etc. of movables 2007Na5234

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Republic of Korea, South west-si, Boan-si

A person shall be appointed.

1.2.2.23.23.44

Attorney Kim Byung-gu, Kim Jong-hee, Lee Jong-hee, and Kim Dong-dong, Counsel for the defendant-appellant

Daejeon District Court Decision 2006Kadan13698 Decided April 18, 2007

July 13, 2007

August 10, 2007

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. The total costs of the lawsuit shall be borne by the plaintiff.

1. Purport of claim

The defendant shall deliver to the plaintiff the movable property listed in the attached sheet.

2. Purport of appeal

The order is as set forth in the text.

1. Basic facts

A. △△△△ Co., Ltd. (hereinafter referred to as the "non-party company") published an advertisement in a daily newspaper to newly build and sell complex pentine (hereinafter referred to as △△△) and temphere in the Nam-si, Nampo-si 103 - 6 Manpo-si. On August 25, 2003, the Defendant entered into a sales contract with the non-party company for 37 square meters out of the above Matrine pentan pentan, and around June 2004, it was difficult to register the ownership transfer of 417 (103 - 43 Mapo-ri 103 - 102 113 52 m2, 27 15 m27 m25 m27 m27 m2, 15 m27 m2.).

B. On June 26, 2004, the non-party company entered into an agency contract for the use, management, and operation of the facility (hereinafter referred to as the "agency contract of this case") with the non-party company on behalf of the defendant until May 31, 2005, with the content that the non-party company will manage the pension of this case and obtain operating benefits.

C. On June 2006, the Defendant terminated the instant agency contract with the non-party company. At that time, the Defendant occupied the instant pen and operated it.

D. Each movable property indicated in the separate sheet (hereinafter “the instant corporeal movable property”) as the guest room fixtures within the instant pen (hereinafter “instant corporeal movable property”).

[Ground of recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 1 to 4, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The instant corporeal movables are purchased and kept by the non-party company for business purposes under an agency contract with the defendant, and are owned by the non-party company. Since the plaintiff acquired the instant corporeal movables from the non-party company, he/she sought delivery of them to the defendant.

B. Defendant’s assertion

The corporeal movables of this case are owned by the defendant, since the defendant was sold in lots from the sub-committee company to the pentent building, and therefore, the above assertion by the plaintiff is unreasonable.

3. Determination

A. It is a question whether the Defendant, at the time of the purchase of the instant pension from Nonparty Company, can be deemed that only the site and building were sold, and whether it can be deemed that it was sold even to the time of purchase necessary for the use of the instant pension.

B. In full view of the descriptions of Gap evidence Nos. 2, 3, 6, Eul evidence Nos. 1, 4, 12 (including branch numbers), and 13, and the purport of the whole pleadings, the following circumstances are recognized.

(1) The Non-Party Company entered into a product with large television, large air conditioners, air conditioners, attached strings, high-class small wave, bed, erosion washing machines, monthly bathing equipment, gas bags, bedclothes and daily necessities as items to be furnished, while advertising for sale in lots of △△ pentol.

( 2 ) 소외 회사는 이 사건 대행계약 체결시 이 사건 유체동산이 소외 회사의 소유라고 언급한 바 없고, 이 사건 대행계약서도 대행계약 해지를 규정하면서 이 사건 유체동산의 귀속에 대하여는 따로 규정하지 않았으며, 2006. 6. 경 소외 회사가 피고와의 재계약 체결 여부에 관한 협의 과정에서 작성한 계약서에는 계약이 종료되었을 때 소외 회사가 피고에게 집기품목 일체를 조건없이 인수인계하는 것으로 규정되어 있다 . ( 3 ) 피고를 포함한 □□□ 펜션의 수분양자들은 펜션을 분양받은 후 펜션 안에 비치될 집기들에 대하여 소외 회사에 대하여 의견을 개진하고 교체를 요구하는 등 적극적으로 비치 물품에 관하여 권리 행사를 하였다 . ( 4 ) 이 사건 유체동산 중 이불장, 식기세척기는 붙박이장 형태로 설치되어 있어 분리가 어렵고, 소외 회사가 동 호수 추첨 후 수분양자들에게 작성하여 교부하여 준 미ㅁㅁ 펜션에 비치할 비치품목 명세서에는 씽크대, 이불장, 신발장 및 이 사건 유체동산 일체가 일괄적으로 기재되어 있었으며, 위 비치품목 명세서 교부 당시에도 소외 회사는 수분양자들에게 집기들에 대한 소유권을 주장한 바 없다 . ( 5 ) 피고는 이 사건 펜션에 대한 화재보험계약 상의 소유자를 변경함에 있어 건물 및 집기 일체를 피고의 소유로 변경하였고, 이에 소외 회사도 이의를 제기하지 않았다 .

C. According to the above facts, it is determined that the non-party company sold a building and site as a pentry containing the instant corporeal movables to the defendant. Article 10(2) of the sale agency contract of this case provides that "the non-party company prepares, maintains, and manages them in the guest room such as office fixtures, equipment, and kitchen instruments, which can be used without inconvenience by the guest room." This purport is that the non-party company managing the instant pentry as a company managing the instant pentry by proxy bears the duty to always maintain the state where the corporeal movables are damaged or lost without inconvenience for its customers to use by supplement management. It does not mean that the instant corporeal movables are excluded from the object of the instant pent sale, and that the ownership of the instant corporeal movables is against the non-party company.

D. Therefore, the plaintiff's claim of this case based on the premise that the ownership of the corporeal movables in this case was against the non-party company is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance with different conclusions is unfair, and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judge Lee Jae-soo, Counsel for judge

Judges Kim Jong-chul

Judges Yoon Jae-young

A person shall be appointed.