Si Jae Construction Co., Ltd. (Law Firm Taeil, Attorneys Kim Jin-jin, Counsel for the plaintiff-appellant)

Defendant 1 and 18 others

Defendant 20

Defendant 21 and 10 others (Attorney Park Byung-chul et al., Counsel for the defendant-appellant-appellee)

New Spring Construction Co., Ltd. (Attorney Park Byung-chul, Counsel for the plaintiff-appellant)

November 8, 2018

Seoul Northern District Court Decision 2015Gahap26928 Decided November 24, 2016

1. Of the judgment of the court of first instance, the part against Defendant 20 is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed.

2. Of the judgment of the court of first instance, the part against Defendant 4 shall be revoked. Defendant 4 shall deliver to the Plaintiff the real estate listed in attached Table 1 No. 3.

3. All appeals filed against the Defendants other than Defendant 20 and Defendant 4 are dismissed.

4. Of the total litigation cost, the part arising between the Plaintiff and Defendant 4 is borne by Defendant 4, and the part arising between the Plaintiff and the remaining Defendants by the Plaintiff.

5. The delivery part as referred to in paragraph (2) may be provisionally executed.

1. Purport of claim

The Defendants indicated in the attached Table 2, “Possessor”, are handed over to the Plaintiff the real estate indicated in the attached Table 1, “Possession real estate.”

2. Purport of appeal

A. The plaintiff

The part against the plaintiff among the judgment of the court of first instance shall be revoked, and a judgment as to the revocation shall be sought as stated in the purport of the claim.

B. Defendant 20

The text of paragraph (1) is as follows.

1. Basic facts

A. On February 7, 2003, 2003, the ○○○○ Reconstruction Improvement Project Association (hereinafter “○○○○○○ Group”) concluded a construction contract (hereinafter “the instant construction contract”) with the supplementary intervenor’s new construction project on the land provided by the non-party association and the construction project cost to cover the liquidation money of the association members and the sale price for the general sale portion (hereinafter “the instant construction contract”).

B. Around March 201, the Intervenor completed the new construction of an apartment pursuant to the instant construction contract (hereinafter “instant apartment”). The instant apartment consisting of 20 to 20 households and 30 to 38 households. The entire 20 to 20 to 30 households and 30 to 30 to 8 households were the sales of the non-party partnership, and the rest 30 to 30 to 30 to 30 to 30 households were the sales of the non-party partnership.

C. On April 9, 2012, the non-party union and its assistant intervenor obtained permission to use the apartment of this case from the head of Nowon-gu in Seoul Special Metropolitan City, and around that time, the non-party union and its assistant intervenor transferred the apartment of this case to the non-party union members or Defendant 24 (the assistant intervenor: Defendant 23) permanently posted and managed

D. On July 24, 2012, the creditor of the non-party association filed an application for a compulsory auction on the non-party association’s share in the non-party association ownership of the apartment of this case including the real estate listed in attached Table 1 (hereinafter “the instant real estate”, and the house room of the instant real estate is specified as the number of houses), and on the non-party association’s share in the non-party association’s share in the instant apartment of this case and on the non-party association’s share in the non-party association of 33 households among the instant apartment of this case (general unit of 30 households + the non-party association’s share in the non-party association’s share in the non-party association’s share). The decision to commence compulsory auction (hereinafter “the instant auction procedure”) was issued on July 24, 2012. The original copy of the relevant decision to commence the auction procedure was served on the non-party association on November 18, 201

E. On December 26, 2012, when the instant auction procedure was in progress, the Intervenor reported a lien on KRW 15,921,751,243 of the construction cost claim under the instant construction contract (hereinafter “instant construction cost claim”). In the instant auction procedure, the Plaintiff was awarded a bid of KRW 2,621,00,000, the entire object of auction, including the instant real estate, in full payment of the sale price on April 23, 2015, and completed the registration of ownership transfer on May 6, 2015.

F. The Plaintiff completed the execution against the Defendants listed in attached Table 2 upon receipt of the provisional disposition prohibiting the transfer of real estate possession stated in attached Table 3.

G. Meanwhile, Nonparty 1 filed a lawsuit against Nonparty 1 on November 15, 2013 against the Intervenor seeking confirmation that there is no right of retention of the Intervenor regarding 13 households, including 602,603, 604, 701, 702, 703, 802, 804, 903, and 904, among the instant real estate (Seoul East Eastern District Court 2013Gahap8395), and the relevant court dismissed Nonparty 1’s claim with the lower court on July 23, 2014 (Seoul High Court 2013Na7680), but appealed on July 23, 2014 (Supreme Court 2014Da5697), but the appeal was dismissed by the Supreme Court (hereinafter “the pertinent appeal”).

H. The Plaintiff filed a lawsuit against the Intervenor seeking delivery of 15 households, including 102, 401, 504, 602, and 701, among the instant real estate (Seoul Northern District Court 2015Dahap22933), and the relevant court dismissed the Plaintiff’s claim on July 27, 2016 on the ground that the Intervenor’s right of retention defense was well-grounded. The Plaintiff appealed to this court on June 8, 2018 (Seoul High Court 2016Na20576), but was sentenced to the dismissal of the appeal on June 8, 2018 (Supreme Court 2018Da248398), but the appeal was dismissed (hereinafter “prior delivery lawsuit”).

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 through 5 (including virtual numbers; hereinafter the same shall apply), Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Determination as to the cause of action

The fact that the Plaintiff acquired the ownership of the instant real estate in the auction procedure is as seen earlier, and the Defendants possessed the real estate indicated below among the instant real estate can be acknowledged by comprehensively taking account of the following evidence and evidence, Gap evidence No. 15, and the purport of all pleadings.

Therefore, the Defendants are obligated to deliver the following real estate to the Plaintiff, barring special circumstances.

Defendant 1: Defendant 15-2, Defendant 2, Defendant 2, Defendant 4: Defendant 2, Defendant 2, Defendant 4, Defendant 2, and Defendant 25 (Defendant 4: Defendant 5: Defendant 2, Defendant 2, Defendant 4: Defendant 2, Defendant 4: Defendant 2, Defendant 4: Defendant 2, Defendant 4, and Defendant 2, Defendant 2, and Defendant 4: Defendant 2, Defendant 2, and Defendant 2, Defendant 4: (Defendant 4: Defendant 20: Defendant 2, Defendant 204, and Defendant 4: Defendant 2, Defendant 44:, Defendant 204, and Defendant 44:, Defendant 2, Defendant 201, and Defendant 301:, Defendant 2, Defendant 301, and Defendant 25:, Defendant 302, Defendant 24, and Defendant 2, Defendant 2, and Defendant 25:302, Defendant 24, respectively.

Note 1) Defendant 27 (Defendant 26)

3. Determination as to the defendants' right of retention defense

A. Summary of the defendants' assertion

A lien exists with respect to the Intervenor’s claim for the construction cost of this case as the secured claim, and the Defendants occupy the relevant occupied part of the instant real estate jointly with the Intervenor with the lien holder or with the consent of the Intervenor. As such, there is a legitimate title to possess the relevant occupied part of the instant real estate.

B. Determination as to the remainder of the Defendants except Defendant 4 (referred to in this paragraph as “the Defendants”).

1) The fact that the supplementary intervenor holds a claim for the construction price of this case against the non-party partnership may be acknowledged either as a dispute between the parties, or as a whole by taking into account the entries in the evidence No. 1 and the purport of the whole pleadings. The claim for the construction price of this case is a claim arising around April 9, 2012 from the use permit prior to the completion authorization of the apartment of this case, which occurred around April 9, 20

2) Since the possession, which is a requirement for establishing a lien and a requirement for existence, includes not only direct possession but also indirect possession (see, e.g., Supreme Court Decision 2011Da44788, Oct. 24, 2013). As such, a lien holder may be deemed to continue an possession of an object of retention either directly or indirectly, regardless of whether the object of retention is directly or indirectly owned, and when the object of retention is leased or provided as a security, an indirect possession is conducted through the tenant or the secured party, so the lien shall continue to exist.

In full view of the purport of the arguments in Gap's evidence Nos. 10, 11, 13, 15, 17, and 20, 222, Eul evidence Nos. 1, 2, 3, 5, and Eul evidence Nos. 2, 2, 3, and 6, the supplementary intervenor delivered to the members of the non-party union about April 9, 2012 the 20th and 30th and 30th and 30th of the share out of the share of the non-party union's purchase to the non-party union members. The remaining 30th and 30th of the share of the non-party union's sale to 30th and 30th of the share of the general share of the 30th and 30th of the share of the 30th of the 30th and 33th of the 30th of the 204th of the 12th of the 204th of the following shares.

1. 12 households listed below are currently used by the staff of the Intervenor and the family members or related persons of the Intervenor’s directors with the consent of the Intervenor:

The possessor of the attached real estate in the main text, Defendant 204, Nonparty 6, Nonparty 2, Defendant 404, Defendant 13, Defendant 14, Defendant 18, Defendant 18, Nonparty 2, Defendant 23, Defendant 24, Defendant 25, Defendant 26, Defendant 27, and his family members, Nonparty 28 Nonparty 2, Defendant 29, Nonparty 29, Nonparty 303, Nonparty 29, Nonparty 304, Nonparty 30, Nonparty 29, Nonparty 29, Nonparty 31, Nonparty 21, Nonparty 31, Nonparty 2, Nonparty 23, Nonparty 24, Nonparty 25, Nonparty 26, and Nonparty 27, Nonparty 28, Nonparty 28, Nonparty 28, Nonparty 29, Nonparty 29, Nonparty 304, Nonparty 31, Nonparty 2, Nonparty 31, Nonparty 2, Nonparty 904.

② The Intervenor consented to the possession and use of and profit from Defendant S&C Co., Ltd. (hereinafter “Defendant S&C”), which is the subcontractor, in possession of 101, 401, and 501. Accordingly, Defendant 1, a person related to Defendant S&C, who was the party related to Defendant S&C, resides in 101 with the consent of the Intervenor from April 2, 2015, and resided in 101 with the consent of the Intervenor; Defendant 15, a person related to Defendant S&C, who was the party related to Defendant S&C, resided in 501 from December 15, 2014 to 501; and Defendant S&C used 401 along with Defendant 10.

③ The Intervenor, who is the subcontractor, consented to occupy and use Nos. 102 and 302 in the Lee Chang-ho, Inc., Ltd. (hereinafter “Defendant Lee Chang-ho”), a subcontractor, and the use of and benefit from such title is using Nos. 102 together with Defendant 3. Defendant Lee Jae-ho, a person related to Defendant Lee Jae-ho, is residing from December 29, 2014 to 302 with the consent of the Intervenor.

④ The Intervenor granted the authority to lease 403 U.S., Inc., Ltd., the subcontractor (hereinafter “S.”), until 403 U.S. (hereinafter “S.”), to appropriate the rent for the construction cost. Accordingly, ASEAN concluded a lease agreement with Defendant 11 on July 24, 2012 with the consent of the Intervenor and the non-party association. Defendant 11 and Defendant 12 occupy 403 units around that time pursuant to the relevant lease agreement (i.e., the Plaintiff, the direct occupant, and Defendant 12 leased Defendant 11 and Defendant 12 from the non-party association, the owner of the 403 owner under the said lease agreement, and (ii) the possession of Defendant 11 and Defendant 12 is not based on the occupation of the Intervenor, the lien holder, and the designation agreement (Evidence No. 3). However, according to the foregoing agreement, Nonparty 403, the representative director of the Plaintiff and the non-party 2, the Intervenor’s subcontractor’s 403 unit.

Defendant 5, who is a person related to Scenna Co., Ltd., is residing from August 29, 2013 to 202 with the consent of the supplementary intervenor.

⑤ Defendant 7, the representative director of the sewage frame development corporation, is residing in Defendant 7 from April 26, 2012 with the consent of the auxiliary intervenor.

6. A supplementary intervenor, around September 27, 2013, permitted Defendant 20 to occupy until the general sale of 603 units, and Defendant 20 occupies 603 units from that time until that time.

7. On June 19, 2012, the Intervenor leased Defendant 16 to Defendant 16, and upon Defendant 16’s request, the name of the lessor was 503 in the name of the non-party partnership, the owner of the lease agreement. Defendant 16 was transferred from June 29, 2012 to 503, and Defendant 17 currently resides in Defendant 16’s children based on the relevant lease agreement.

3) According to the facts established above, it is reasonable to view that the Intervenor acquired a lien on the instant real estate on or around April 9, 2012, and the Defendants, based on the right of retention of the Intervenor, jointly with the Intervenor or as the possession assistant of the Intervenor, possess the instant real estate jointly with the Intervenor or jointly with the assistant intervenor. Therefore, the Defendants have a legitimate right to possess the portion of the instant real estate possession.

C. Determination as to Defendant 4

Comprehensively taking account of the purport of evidence evidence Nos. 8, 12, and 15, the supplementary intervenor leased No. 104 to Defendant 4 on July 11, 2012, and Defendant 4 occupied Defendant 104 from July 17, 2012 to the present date. However, the supplementary intervenor filed a lawsuit against Defendant 4 to deliver No. 104 by asserting that the relevant lease contract was terminated due to the delayed payment of rent, against Defendant 4, and received a favorable judgment of December 4, 2014 (Seoul Northern District Court Decision 2014Ga34925 decided December 4, 2014). The relevant judgment can be recognized as having become final and conclusive at that time.

According to the facts established above, the possession mediating relationship between Defendant 4 and Defendant 4 based on the lien against Defendant 104 on the Intervenor’s 104 ought to be deemed to have been terminated by the Intervenor’s termination of the lease agreement against Defendant 4. As such, Defendant 4 ought to be deemed to have no right to possess 104 units based on the lien of the Intervenor.

Therefore, Defendant 4’s right of retention defense is without merit.

D. Determination as to the claim for the extinction of lien against the remaining Defendants except Defendant 4 (referred to in this paragraph as “Defendants”).

1) Summary of the Plaintiff’s assertion

Since the Intervenor did not perform the duty of due care as a good manager, such as using or leasing this without the consent of the owner of the instant real estate, the Intervenor’s lien terminated upon the Plaintiff’s motion to extinguish the lien against the Intervenor.

2) Determination

A) According to Article 324 of the Civil Act, the lien holder shall possess the thing under custody with the care of a good manager; the lien holder shall not use, lease, or offer security beyond the scope necessary for the preservation of the thing under custody without the owner’s consent; and the lien holder may claim termination of the lien if the lien holder violates the relevant duty; however, the person who exercises the lien on the basis of the claim for construction cost, resides in and uses the house under custody, which is the object under custody, is an act helpful for the preservation of the object under custody, unless there are special circumstances; and in such a case, the extinction of the lien may not be claimed (see Supreme Court Decision 201Da10709, Apr. 11, 2013, etc.). An assistant in possession is deemed to have been under the direction of another person under the direction of a good manager, such as household affairs, business relations, but may occur under an employment contract, such as delegation, contract, etc., and may be deemed to have been under the direction of another person under the direction of the owner under the comprehensive possession relationship with other person (see Supreme Court Decision 2010.

In light of the above legal principles, the instant case is insufficient to acknowledge that the Intervenor used or lent the instant real estate beyond the scope necessary for preserving the real estate without the owner’s consent, based on the evidence submitted by the Plaintiff, and there is no other evidence to acknowledge otherwise. Accordingly, the Plaintiff’s assertion on the claim for the extinction of the lien against the Intervenor joining the Plaintiff cannot be accepted.

① In view of the progress of residence and the fact that the instant real estate are apartment buildings, the Defendants cannot be deemed to use the instant real estate beyond the scope specially required for preservation solely based on the fact that the Defendants were either transferred to or resided in the instant real estate.

② Even until the Defendants occupied the instant real estate, the Intervenor attached a warning that “I are allowed to enter the instant real estate without prior permission, since I occupy the current site for the purpose of exercising the right of retention pursuant to Article 320(1) of the Civil Act.” As such, I take measures to ensure that the instant real estate is used to the extent necessary to preserve the right of retention.”

③ As seen earlier, the non-party union consented or impliedly consented to the possession of the supplementary intervenor and the Defendants, and there seems to be no dispute between the non-party union, the supplementary intervenor, or the Defendants regarding the possession in question.

④ In the preceding lien lawsuit, Nonparty 1 filed a lawsuit against the supplementary intervenor seeking confirmation of the non-existence of the lien against Nonparty 1, who was the supplementary intervenor, but the supplementary intervenor was determined as having the lien on the pertinent real estate and won the supplementary intervenor. The preceding lien lawsuit became final and conclusive around 2014.

⑤ In a prior extradition lawsuit, the Plaintiff filed a lawsuit against the Intervenor seeking delivery of 15 households, including 102, 401, 504, 602, and 701. The Plaintiff asserted the claim for extinguishment of the right of retention on the ground that the Intervenor used or leased the said 15 household units without the owner’s consent. However, the Plaintiff’s assertion was not accepted, and the prior lien lawsuit became final and conclusive around October 2018.

B) The lien holder has the right to retain the custody until a full repayment of the secured claim is made, and even if an auction is held on the custody, the intervenor who is the lien holder may oppose the new owner with the lien. Therefore, if the Plaintiff acquired the ownership of the real estate in this case by auction before acquiring the ownership of the real estate in this case and used it within the scope of obtaining the consent, the intervenor who is the lien cannot be deemed to have violated the duty to prohibit the use of the custody under Article 324(2) of the Civil Act on the ground that the Plaintiff, a new owner, did not obtain a separate consent. The mere fact that the owner has changed from the non-party partnership to the Plaintiff, the Intervenor’s use of the custody with the consent of the non-party partnership, etc. is not immediately converted into a breach of duty subject to the claim for extinction of the lien, and the Intervenor or the Defendants did not require the Plaintiff

C) Therefore, we cannot accept all of the Plaintiff’s assertion on this part.

E. Determination as to the Plaintiff’s assertion that the attachment prohibition effect against Defendant 11, Defendant 12, Defendant 16, Defendant 30, and Defendant 31 violated

1) After the registration of the decision on commencing the auction of the instant real estate was completed, the Plaintiff, Defendant 11, Defendant 12, Defendant 16, Defendant 30, and Defendant 31 entered into a lease agreement with the supplementary intervenor and commenced possession of the portion in possession of the instant real estate. Since such act was transferred after the seizure became effective, it violates the prohibition of disposition of seizure, and thus, the said Defendants cannot assert their title to possession against the Plaintiff, the successful bidder in the instant auction procedure.

2) In a case where the debtor acquired a lien by transferring the possession of the construction price to the creditor of the construction price for the pertinent real estate after a compulsory decision on commencement of auction was made on April 9, 2012, which was owned by the debtor, and the seizure became effective, the transfer of such possession goes against the prohibition of disposition of seizure under Articles 92(1) and 83(4) of the Civil Execution Act (see, e.g., Supreme Court Decision 2005Da22688, Aug. 19, 2005). However, since the supplementary intervenor acquired a lien on the instant real estate around April 9, 2012, which was before the compulsory decision on commencement of auction was made, the supplementary intervenor who acquired the lien prior to the compulsory decision on commencement of auction, obtained the lien on the instant real estate, cannot be seen as a dispositive act that conflict with the prohibition of disposal by accepting the possession of, or making profits from, the said possession by, the relevant Defendants.

F. Sub-committee

Therefore, since the remaining defendants except the defendant 4's right of retention defense is well-grounded, the plaintiff's claims against the remaining defendants except the defendant 4 cannot be accepted, and since the defendant 4's right of retention defense is without merit, the defendant 4 must deliver 104 to the plaintiff.

4. Conclusion

The plaintiff's claim against the defendant 4 must be accepted on the ground of the reasons, and all claims against the remaining defendants shall not be accepted on the ground of the reason.

Since the judgment of the court of first instance is inappropriate in part of its conclusion, it accepted the appeal by Defendant 20, and revoked the part against Defendant 20 among the judgment of the court of first instance, and dismissed the Plaintiff’s claim corresponding to the revoked part. The Plaintiff’s appeal against Defendant 4 is accepted, and the part against Defendant 4 is revoked and the delivery of the relevant real estate is ordered as set forth in paragraph (2) of this Article. The remaining appeal against the Defendants is dismissed as all of the grounds

[Attachment]

Judges Kim Yong-dae (Presiding Judge)

(1) Although Defendant 26 and Defendant 27 asserted that they occupied Defendant 24 along with Defendant 24 and left the post, according to the evidence No. 15, Defendant 26 and Defendant 27 can only be recognized as having filed a move-in report on May 9, 2013, and there is no evidence to support that Defendant 26 and Defendant 27 left the post-in report on May 703, 201.

2) The Plaintiff asserted to the effect that the Intervenor’s claim for the construction cost of this case cannot be the secured claim regarding the instant real estate in a prior extradition lawsuit, but such assertion was rejected.

3) On March 27, 2013, the non-party association granted the supplementary intervenor the authority to accord and pay in lieu of 12 households, including 101, 401, and 501, to the supplementary intervenor (Evidence B 3).