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서울서부지방법원 2015.11.12 2014가합9946

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.


1. Determination as to the cause of claim

A. The Plaintiffs asserts as follows and seek confirmation that each lien exists based on the claim for construction cost stated in the attached Table 2 (hereinafter “instant building”) concerning the building indicated in the attached Table 1 (hereinafter “instant building”) against the Defendant, the owner of the instant building, as indicated in the following:

1) The Plaintiff, from G, H, and I, has been awarded a contract for part of the new construction of the instant building and the interior works on the ground of Eunpyeong-gu Seoul J, and completed approximately 85% of its fairness. Accordingly, the Plaintiff’s claim for construction payment is as shown in the attached Table (2). 2) From July 12, 2013, the Plaintiffs occupied and managed the instant building from July 12, 2013 to the date.

3. The plaintiffs have the right to attract the building of this case in order to recover the claim of this case, and the defendant is disputing this.

B. Article 320(1) of the Civil Act provides, “A person who possesses another’s property or securities has the right to retain such property or securities until the time when the claim arising from such property or securities becomes due, shall have the right to retain such property or securities until payment is made.” Article 328 of the Civil Act provides, “The right of retention shall be extinguished by the loss of possession.” Article 204 of the Civil Act provides, “When the possessor is deprived of his possession, the possessor may claim the return of the property or the compensation for damages. The above right of retention shall not be exercised against the special successor of the deprived person. However, this provision shall not apply where the successor has acted in bad faith.”

Even if a person has the right to attract new buildings by occupying a new building in order to preserve a claim for the cost of construction of a new building, if he/she loses possession of the new building, the lien shall be extinguished, and the loss of possession shall be caused by the illegal occupation or deprivation by a third party.