Where the contractor has a lien on a building newly built in the contract agreement;

If a contractor who has built a new building of a house occupies the building and has a claim for construction funds incurred in the building, the contractor shall have the right to retain the building until his/her claim is repaid, and such right of retention shall not be extinguished unless there are special circumstances such as loss of the contractor's possession or repayment of the secured debt, etc.

Articles 320 and 664 of the Civil Act

[Plaintiff-Appellee] Plaintiff 1 and 2 others (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellee)

Plaintiff (Counterclaim Defendant)

Defendant (Counterclaim Plaintiff)

Incheon District Court Decision 94Na5953, 6000 (Counterclaim) Decided February 17, 1995

The main part of the judgment of the court below shall be reversed, and this part of the case shall be remanded to the Incheon District Court Panel Division.

The remaining appeals by the Defendant-Counterclaim Plaintiff are dismissed.

The costs of appeal to the Supreme Court are assessed against the Defendant (Counterclaim Plaintiff).

We examine the Defendant-Counterclaim Plaintiff’s ground of appeal.

1. In light of the relation to evidence and the record as stated by the court below, the court below's finding of facts is justified and there is no error of law in incomplete deliberation or finding facts against the rules of evidence, such as in the process of litigation.

2. If the facts are as determined by the court below, it shall be deemed that the ownership of the building completed under the contract for each of the buildings of this case belongs to the contractor, and it shall not be deemed that the ownership of each of the buildings of this case belongs to the defendant who is the contractor. The decision to the same purport is made, and the court below which rejected the counterclaim claim against the defendant on the premise that ownership of each of the buildings of this case belongs to the contractor is just. The argument is without merit

3. However, as the court below recognized lawfully, if the contractor is a contractor for the construction of a new building as listed in the annexed Table 1 of the judgment below in possession of the defendant, and if the defendant claims for the construction of the above building, the defendant has the right to attract the above building until he is paid his claim, and such right of retention is not extinguished unless there are special circumstances such as loss of the defendant's possession or repayment of the secured obligation, and thus, as the court below decided, the contractor entrusted the defendant with the right to dispose of each of the buildings of this case, including the above building, and granted the right of disposal of the building, which was completed on May 29, 1987, to receive all the construction costs, such as construction costs, etc. from the sale and disposal of the above building, and even if the defendant is able to receive the construction price as the price, such agreement alone cannot be deemed to have been repaid, and even if examining the records, it cannot be viewed that the above construction price or lien has been extinguished.

In this case, the defendant should be regarded as having the right of retention for the real estate stated in the above list 1 within the meaning of securing the claim for the construction cost.

Nevertheless, the defendant's right of retention defense is rejected, and the court below which accepted the plaintiff's claim for the name of the building in this case by misunderstanding the legal principles as to the right of retention, thereby adversely affecting the conclusion of the judgment, on the ground that the defendant cannot exercise the right of retention on the premise of a claim for the construction price as to the above real estate, separate from the fact that the defendant disposes of the above building in this agreement and substituted the payment for the construction

4. Therefore, the part of the judgment of the court below is reversed, and that part of the case is remanded to the court below, and the defendant's remaining appeal (appeal against the counterclaim) is dismissed, and the costs of appeal as to the appeal are assessed against the losing party. It is so decided as per Disposition by

Justices Cho Chang-tae (Presiding Justice)