The case holding that a person who purchased real estate with the knowledge of the possessor's report on the lien in the public auction procedure has been deprived of the possession, extinguishing the lien and making it difficult for the lien holder to recover possession based on the final judgment of the lien holder due to intentional transfer of possession, seeking confirmation of existence of the lien actively against the lien holder on the ground that the lien holder was not able to recover possession until now constitutes abuse of rights and thus is not allowed.

The case holding that an affirmative confirmation of existence of a lien against a lien holder on the ground that the lien holder was unable to recover possession up to now even though a purchaser of real estate was deprived of the occupant's report of the lien in the public sale procedure, thereby extinguishing the lien and making it difficult for the lien purchaser to recover possession due to intentional transfer of possession, demanding the victim to accept the outcome of infringement of rights due to a tort, and further the court to obtain approval of the aforementioned result of infringement of rights on the ground that it is obviously contrary to the concept of justice, and thus, it is not allowed as an abuse of rights as it constitutes abuse of rights.

Articles 2(2), 204, 320, and 328 of the Civil Act

[Defendant-Appellee] Plaintiff (Attorney Soh Ho et al., Counsel for defendant-appellee)

Defendant (Attorney Kim Young-hoon et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na95719 decided October 23, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below concluded a lawsuit against the plaintiff 2 on July 18, 2006 against the non-party 2, who purchased each of the instant real estate at KRW 6,398,736,830, and completed the registration of ownership transfer on the same day. The defendant occupied each of the instant real estate through the defendant 1, etc. from April 2005, and reported the lien at the above public sale procedure. The plaintiff mobilized 70 employees of the service company on August 2, 2006 through the non-party 2, who was the head of the Charnel District Court's office, and acquired possession of each of the instant real estate at the time by force of the defendant's employees, and as a result, the defendant lost possession of each of the instant real estate at the time, and the non-party 2 was sentenced to imprisonment with prison labor for 20 years for the above 30 years for possession and recovery of each of the instant real estate at the time.

2. However, it is difficult to accept such a determination by the lower court for the following reasons.

According to the facts and records acknowledged by the court below, since the defendant has already reported the above right of retention in the auction procedure for each real estate of this case, the plaintiff purchased each of the above real estate before being aware of such facts. ② Nevertheless, the plaintiff did not make an effort to acquire the possession of each of the above real estate through consultation with the defendant and the due process of law, and thereafter, he forced the defendant to occupy each of the above real estate under his own initiative by mobilization of large number of persons under his own initiative and use violence. ③ Therefore, the plaintiff was the person unlawfully deprived of the defendant's possession, and therefore, the defendant seems to have been obliged to return the possession of each of the above real estate to the defendant under Article 204 (1) of the Civil Code. ④ The defendant's lawsuit against the plaintiff was affirmed in favor of the defendant for a long period of time, ⑤ The plaintiff appears to have been deprived of the defendant's possession of each of the above real estate and the recovery of possession of each of the above real estate by the plaintiff's possession of each of the above real estate from the non-party 3 corporation.

In light of the above circumstances, the plaintiff extinguished the defendant's right of retention by his act of deprivation of possession and made it difficult for the defendant to recover possession based on the defendant's final judgment due to the intentional transfer of possession. Nevertheless, the defendant actively sought confirmation of existence of right against the defendant on the ground that the defendant did not restore possession until now, demanding the defendant to accept the result of infringement of right due to his own tort, using the situation caused by his own tort as his own interest, and further the court to obtain approval of the result of the above illegal infringement. This is obviously contrary to the concept of justice, and thus, it is not allowed as it constitutes abuse of right.

Nevertheless, the court below rejected the defendant's abuse of rights and accepted the plaintiff's claim for the confirmation of existence of the right in this case, which affected the conclusion of the remaining judgment by misunderstanding the legal principles as to abuse of rights. The defendant's assertion pointing this out has merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)