2015Da57485 Delivery, etc. of Building

A

1. B

2. C

Busan District Court Decision 2014Na5552 Decided July 22, 2015

January 25, 2018

The judgment below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. Article 320(1) of the Civil Act provides, “A person who possesses an article or securities of another person shall have the right to retain such article or securities until the time when the obligation arising in respect of such article or securities becomes due.” Here, “claim arising in respect of such article” includes not only cases where a claim arises from the subject matter itself, but also cases where a claim arises from the same legal relation or factual relation as the right to claim the return of the subject matter, unless it is contrary to the principle of equity, which is the original purpose of the lien system. Meanwhile, Article 321 of the Civil Act provides, “The lien holder may exercise his right to the whole subject matter from the time when the claim is repaid in full.” As such, each part of the subject matter guarantees the entire secured claim, and the indivisibleness of such a lien applies to cases where it is possible to divide the subject matter or several objects (see Supreme Court Decision 2005Da16942, Sept. 7, 207).

2. A. After recognizing the facts as stated in its reasoning, the lower court determined that the Defendants were obligated to deliver 201 G Loans (hereinafter “the instant section for exclusive use”) as indicated in the Plaintiff’s judgment, and to return unjust enrichment equivalent to the rent. The lower court rejected the Defendants’ defense against the Defendants on the ground that the Defendants’ right to demand reimbursement of delegated expenses is merely a bond arising from the rooftop and underground construction of the instant loan, and thus cannot be deemed a claim arising from the instant section for exclusive use.

B. However, we cannot accept the above judgment of the court below as it is.

1) According to the reasoning of the lower judgment and the record, the following facts are revealed. ① On July 1, 2005, when the loan of this case, including the section for exclusive use, was not approved, the registration of preservation of ownership in the name of T and M was completed by 1/2 of the co-ownership at the commission of registration of application for compulsory sale by official auction on July 1, 2005. ② After that, on September 4, 2009, the compulsory auction procedure for the loan of this case was re-established at the request of the East-dong Saemaeul Saemaul Cooperative, and the J purchased all of the proceedings and completed the registration of ownership transfer on October 1, 201. ③ The J and H are undergoing the above auction procedure.

On July 27, 2010, J entrusted H with the authority to sell and sell the instant loan, establish collateral security, lease, etc., and H faithfully performed the obligation as a mandatory. ④ Pursuant to the performance agreement, H performed the remaining finishing construction works, etc. to enable H to obtain approval for use of the instant loan in accordance with the performance agreement, and the appellate court recognized H’s disbursement of KRW 40,119,20 for the use of the instant loan, among the expenses of delegated duties performed by H on its behalf pursuant to the performance agreement, and ordered H to complete the registration of ownership transfer as the part of the Defendants’ residence and residence of H, under the implementation agreement.

2) According to the above execution agreement with J, H performed construction of the loan of this case with respect to the whole loan of this case. Accordingly, it is reasonable to view that H does not distinguish the same type of the loan of this case from that of the sub-section, and that H bears the obligation to pay the whole expenses incurred from the construction of the above construction without distinguishing it from that of the sub-section, and there is no reason to view that H does not have any circumstance to guarantee the right to demand reimbursement of expenses related to the above construction separately. Thus, it is sufficient to view that H’s right to demand reimbursement of expenses related to the above construction has arisen from a legal relationship, such as the above performance agreement. In this case, it is reasonable to view that the relation between the entire bond of this case and the loan of this case which is the object of the construction is recognized, and that the part of this case also becomes a security for the whole claim of this case due to

3) Meanwhile, in cases where the owner consents to the use, lease, etc. of the goods kept in custody by the lien holder or such act constitutes an act of preservation, the lien holder may, pursuant to Article 323 of the Civil Act, receive the negligence of the goods kept in custody and appropriate it for the repayment of his/her claim in preference to other claims (see Supreme Court Decision 2009Da49117, Feb. 11, 2010)

C. Nevertheless, the lower court determined that the above claim was not a claim arising with respect to the instant section of exclusive ownership solely on the ground that the claim was not due to construction works for the instant section of exclusive ownership, and rejected the Defendants’ assertion of appropriation of the claim regarding the right of retention defense and return of unjust enrichment, among the H’s right of recourse to the expenses for the performance of delegated affairs against HJ, was erroneous by misapprehending the legal doctrine as to the relation between the lien and the right of retention, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim In-bok

Justices Park Sang-ok

Chief Justice Lee Dong-won

Justices Park Il-san