Suwon Automobile Sales Co., Ltd. (Law Firm two U&W, Attorneys Han-Hy et al., Counsel for defendant-appellant)

Defendant (Attorney Han Chang-ho et al., Counsel for the defendant-appellant)

June 17, 2011

Incheon District Court Decision 2010Kadan1168 Decided September 30, 2010

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

It is confirmed that the Plaintiff has a lien on the first floor ○○○○○○ 39.80 square meters (hereinafter “instant dispute price”) of Jungcheon-gu, Seocheon-gu, Seoul Special Metropolitan City 1148-2, Jungdong-dong 1148-2, Jungdong-dong 2.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. On March 20, 2002, the Plaintiff entered into a contract for the new construction work (the construction cost of KRW 18,370,000) and a contract for the multi-level installation work of the instant building (the construction cost of KRW 1,249,820,00) (the construction cost of KRW 1,249,820,00) with the Jinjin Construction Co., Ltd. (hereinafter “Yinjin Construction”), and with the Plaintiff on March 20, 200. According to each of the above construction contracts, the Jinjin Construction shall pay the relevant progress payment to the Plaintiff within five days after completion of the inspection of the Plaintiff’s completed portion, and shall pay the amount payable in addition to interest at 12% per annum for the unpaid portion.

B. On June 29, 2004, the Plaintiff settled that the construction cost of the instant building would have been increased to KRW 18,457,780,000 from the previous 18,370,000,000, and that the amount of the instant building multi-level installation work would have been reduced to KRW 1,182,940,000 from the previous 1,249,820,000.

C. Meanwhile, from April 18, 2002 to December 18, 2003, Jinjin Construction paid only KRW 7,711,175,265 of the agreed construction cost to the Plaintiff from April 18, 2002 to December 18, 2003, and on July 4, 2004, the unpaid construction cost was KRW 11,929,54,735 (i.e., the cost of new construction of the instant building + KRW 18,457,780,00 + the cost of new construction of the instant building of this case + KRW 1,182,940,00 - KRW 7,711,715,265). The interest in arrears reaches KRW 4,713,476,444.

D. Accordingly, on August 10, 2007, the Plaintiff filed a lawsuit against the present construction against the present construction to secure the amount of 16,643,021,179 won unpaid construction cost and the amount of interest in arrears pursuant to Article 66 of the Civil Act, including the dispute price in this case, and filed a lawsuit against the present construction on April 21, 2008 regarding the 31 household of the building in this case including the dispute price in this case, including the execution of the procedures for registering the establishment of a mortgage, etc. under the Sung-nam branch of Sungwon District Court 2007Gahap8538, Sungnam-nam branch of the above court, and on April 21, 2008, the above court determined that "Yjin Construction shall pay to the Plaintiff an amount equivalent to 16,643,021,179 won a year from June 1, 208 to the day of full payment." The above decision was finalized as it became final and conclusive on May 2, 2008.

E. After completing the registration of establishment of a mortgage on the 31st generation of the instant building, the Plaintiff filed an application for voluntary auction from the Incheon District Court Branch of 2008 to 11479 on September 23, 2008. In the auction procedure, on September 23, 2008, the Plaintiff reported the right of retention with the claim for construction cost in accordance with the above decision of recommending reconciliation as the secured claim. On the date of distribution implemented on July 17, 2009, the amount of KRW 5,296,035,051 distributed dividends of KRW 15,104,205,155 on the remainder of the construction cost.

F. Meanwhile, in the above auction procedure, the defendant completed the registration of ownership transfer on July 28, 2009, after receiving the decision of permission for the highest provisional sale as to the dispute price of this case on May 14, 2009 and paying the sales price in full.

[Ground for Recognition: Facts without dispute; Gap evidence Nos. 1 through 5, 12 (including each number for evidence Nos. 1, 2, and 12); Eul evidence Nos. 6, 24, and 25; the purport of the whole pleadings]

2. The parties' assertion

The Plaintiff asserts that the Plaintiff has a claim for the construction cost arising from the new construction of the instant building, and that since from the completion of the construction of the instant building, the Plaintiff occupied the instant building including the dispute price, it has the right to attract the dispute of this case until the entire claim for the construction cost is repaid.

In regard to this, the Defendant: (a) there was no evidence to acknowledge the existence of the claim for the construction price claimed by the Plaintiff; (b) even if there was a claim for the construction price, even if there was a claim for the construction price, there was no secured debt of the lien since it had already been received dividends by executing the mortgage established as a collateral; and (c) even if the Plaintiff was found to possess the dispute of this case, it did not exist any lien since it was illegal possession or lost its current possession; and (c) even if not, as a lien holder, the Plaintiff was negligent in cleaning the dispute of this case or failing to take any measure even at the time of intensive preference in 2009, because the Plaintiff was not negligent in taking care of the fiduciary duty with regard to the dispute of this case as the lien holder, and thus, the Defendant did not fall under the debtor who was the claim for the extinguishment of the lien under Article 324(3) of the Civil Act, but by analogical application of the said provision to the third acquisitor, notified the Plaintiff of its intent to claim

3. Determination

(a) Claim secured;

(1) As seen earlier, the Plaintiff filed a lawsuit against the present construction, seeking payment of the construction cost, etc., after receiving a new construction contract for the instant building from the Jinjin Construction and completing the construction work, and secured the enforcement title to the effect that “Yinjin Construction shall pay the Plaintiff the said amount as to the instant building, and shall execute the registration procedure for establishing a mortgage with the amount of the said money as the claim amount,” and only a part of the said amount was paid through dividends. As such, the Plaintiff has a claim for the construction cost as to the instant building (the Defendant’s assertion for extinctive prescription is without merit, as long as the existence of a claim for the construction cost becomes final

(2) Furthermore, even if a creditor holding a mortgage and a lien on a certain object carried out a mortgage, as long as the secured debt is not satisfied due to the execution of such mortgage, the lien remains effective until the secured debt is extinguished, and as seen earlier, the plaintiff did not receive the full payment of the above secured debt even after the execution of the mortgage. Therefore, the plaintiff's claim for construction cost still exists.

(3) Meanwhile, following the completion of the construction, the Defendant asserts that the Plaintiff did not have any claim for the payment of the price for the deferred construction, which is the secured debt, by receiving the remainder payment of KRW 7,600,000 from the buyer of the instant building from the buyer of the instant building after the completion of the construction. The written evidence Nos. 41 and 42 is not sufficient to deem that the Plaintiff received the remainder payment of KRW 7,60,000 in total from the buyer of the instant building in lieu of the construction cost, and even if not, the Defendant’s assertion is not much short of KRW 16,643,021,179 in total due to the Plaintiff’s failure to pay the unpaid construction cost and the interest for the delay. Accordingly, according to each of the evidence Nos. 33,34,35,36, each of the building of this case after the completion of construction, Nonparty 2, who purchased the building of this case, paid the Plaintiff the remainder payment of KRW 40,97,904.

(b) Possession;

(1) In addition to the overall purport of pleadings as to Gap evidence 8 and 9's statements, Eul evidence 28 and 29's statements, Gap evidence 6, Gap evidence 14-1 to 3, and non-party 3's testimony by non-party 1 witness of the court of first instance, since August 18, 204, immediately after the completion of the construction by the plaintiff, the plaintiff has occupied the whole building of this case including the dispute of this case by attaching a lien notice, etc. to the whole building of this case including the dispute of this case, and by controlling other's entry. On October 15, 2009, it can be acknowledged that the plaintiff entered into a commercial lien management contract with regard to the dispute of this case for the dispute of this case and concluded a commercial lien management contract for the dispute of this case, and therefore, it is insufficient to recognize that the oil developer had caused the oil development to manage the dispute of this case's shops of this case through the direct possession of No. 384, 384, and 384, respectively.

(2) Meanwhile, according to the statements in the evidence Nos. 1 through 4, 7, and 13 in the above auction procedure, the relationship of possession and lease of the entire building of this case as of July 7, 2008, which was prepared by an execution officer at the above auction procedure, was unregistered, and the whole building of this case was entered as the state of official status, and the fact that the defendant paid management fees for the dispute of this case to the Democratic Industry Co., Ltd., which is the managing company of the building of this case after the registration of ownership transfer as to the dispute of this case was completed.

However, according to the evidence Nos. 9, 12, and 13 (the evidence Nos. 12 and 13 of the above evidence) of this case, the defendant applied for an order to deliver real estate against the plaintiff, but was dismissed on the ground that the right of retention was held against the plaintiff (the Incheon District Court Branch Decision 2009Ma1093, the Incheon District Court Decision 2009Ra466, the Supreme Court Decision 2010Ma168), and the defendant again applied for an order to deliver real estate against the oil development (the Incheon District Court Branch Branch Decision 2009Ma1596), it can be recognized that the defendant applied for an order to deliver real estate again (the above evidence Nos. 12 and 13 of the above evidence) and the above fact that the plaintiff reported the right of retention as the secured claim on September 23, 2008, and it appears that the defendant participated in the auction procedure, even if the defendant concluded the above contract to occupy and manage the building of this case with the present construction and the construction.

(3) Furthermore, according to each of the statements on the Defendant’s assertion of the loss of possession, the Defendant’s possession of Nos. 21 through 23 (the evidence Nos. 21 and 23 includes each number), and the fact that Nonparty 1 leased the instant dispute to Nonparty 1 (the Nonparty in the judgment of the Supreme Court) on June 22, 2010 and Nonparty 1 occupied the instant dispute. However, the Defendant’s assertion against the Plaintiff that the Plaintiff was one’s own possession and the rejection of the order was rejected by unfair means that the Plaintiff was deprived of the Plaintiff’s possession. As long as the Plaintiff could have recovered the possession of the instant dispute on the ground of the deprivation of possession, it cannot be said that the Plaintiff lost possession of the instant dispute. Accordingly, the Defendant’s assertion that there was no reason for the foregoing assertion.

C. Defendant’s claim for the termination of lien

Article 324(1) and (3) of the Civil Act provides that the lien holder shall possess the thing in custody with the care of a good manager, and if the lien is violated, the obligor may claim the extinction of the lien. Thus, each statement of the evidence Nos. 46, 47, and 48 (including the number of evidence No. 47) cannot be deemed to have violated the fiduciary duty as to the price in the dispute in this case. Since there is no other evidence to acknowledge this differently, the above argument of the Defendant on the premise of this, without the need for further examination, is without merit.

D. Sub-committee

Therefore, the plaintiff has the right of retention for the claim for the construction cost as the secured claim regarding the present construction price in the dispute of this case, and as long as the defendant contests this, he has the interest in confirmation.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kang Jae-chul (Presiding Judge)