S. S. KON Construction Co.

Applicant

Busan District Court Order 2011Ma2188 dated November 2, 2011

The appeal of this case is dismissed.

1. Basic facts

Review of the records of this case reveals the following facts.

A. The applicant filed for auction of real estate in the Busan District Court Decision 2009 Ma6195, 2009 Ma4076, 2009 Ma461, 209 Ma6461, 201, on June 20, 201, after receiving a decision to permit the sale of the instant real estate on July 6, 201, the sales price was paid in full and acquired ownership of the instant real estate on July 6, 2011.

B. On the other hand, on November 26, 2009, the respondent reported the lien on the total of seven Espraki's commercial loans including the instant real estate on November 26, 2009, when the above voluntary auction was in progress.

C. On July 23, 2011, the applicant filed an application for an order of real estate delivery with Busan District Court 201tagi2188 against seven persons, including the respondent who occupies the instant real estate on July 23, 201. On November 2, 2011, the court of first instance rendered a decision of the first instance ordering the applicant to deliver the instant real estate upon accepting the said application.

2. Summary of grounds for appeal;

In around 206, the respondent transferred the construction contract on the 4 to 7th floor of the commercial building 2006, including the real estate in this case, and completed the registration of ownership transfer, and sold and sold all the 4 to 2,164,932,000 won out of the total sales price of the above 4,084,932,00 won from the above foundation to 2,164,932,00 won, and the respondent was entitled to possess the real estate in this case as a lien holder, since the respondent's claim on the sales price of the commercial building in this case against the above foundation is a claim on the real estate in this case.

3. Determination

However, if a person who possesses another person's property has a right of retention, it should be the difference between the possessor's claim and the object of possession, i.e., the claim occurred from the object itself or the claim occurred from the legal relation or fact identical to the right to claim the return of the object (see, e.g., Supreme Court Decision 2005Da16942, Sept. 7, 2007). The claim for the sale price against the respondent is a right to claim only against the above foundation based on the sale contract with the medical corporation, and the respondent merely has a right to defense of simultaneous performance, which can be asserted against the above foundation, and the above claim for the sale price occurred from the real estate itself or from the legal relation or fact identical to the right to claim the return of the above real estate, and there is no lack to recognize that the respondent can exercise a right of retention with respect to the real estate of this case, and there is no evidence to prove otherwise that the respondent has the right to claim possession falling under the proviso to Article 136 (1) of the Civil Execution Act.

4. Conclusion

Therefore, the request for the delivery order of the applicant shall be accepted for the reasons that it is reasonable, and the decision of the first instance court is just, and the appeal of this case by the respondent is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Lee Jong-hun (Presiding Justice)