Heung Life Insurance Co., Ltd. (Law Firm Global, Attorney Ba-joon, Counsel for the plaintiff-appellant)

Sdrid Security System and 10 others (Attorney Jeong-hun et al., Counsel for the defendant-appellant)

September 26, 2008

1. It is confirmed that the defendants' lien does not exist with respect to the attached real estate indicated in the attached real estate.

2. The costs of lawsuit shall be borne by the defendants.

The same shall apply to the order.

1. Basic facts

The following facts may be acknowledged by considering the following facts as a whole: Gap evidence 1 to 6, Eul evidence 1 to 10 (including each number), non-party 1 and 4 of the witness, and the fact inquiry into the loyalty market of this court, as a whole, the purport of the whole pleadings.

A. The defendants' claim for construction price against the non-party 1 and the circumstance of the defendants' possession of the hotel in this case

(1) On November 3, 2003, Nonparty 1 purchased each land listed in the No. 1 and 3 of the annexed real estate in the name of Nonparty 2 (hereinafter “instant land”). On the ground of the instant land, Nonparty 1 decided to newly construct a hotel (hereinafter “instant hotel”) on the ground of the instant land, and entered into a construction contract with the Defendants (excluding Defendant 10; hereinafter the same) from April 1, 2004 to November 2, 2004, as described in the attached Table 2 construction work details.

The Defendants completed the instant hotel in accordance with the construction contract from around 2004 to February 2005, and Nonparty 1 completed the registration of preservation of ownership of the instant hotel on February 1, 2005, and operated the hotel in the name of “○○ hotel”.

Secondly, the Defendants did not receive only the remainder of KRW 1,129,50,00,00 in the column for the amount of [Attachment 2] construction work from Nonparty 1, and did not receive the remainder of KRW 1,129,50,00,00, on November 18, 2006, held a meeting of ○○○ hotel construction business operator and possessed the hotel of this case from Nonparty 1, thereby exercising the right of retention. The Defendants decided to delegate the right of retention to Nonparty 3, the representative of the Defendant Switzerland security system.

x) Accordingly, Nonparty 3 transferred the instant hotel from Nonparty 1 at that time, and attached respectively to the wall of the building a banner stating “this building is the construction company’s honor of possession with custody and possession,” and on the entrance of the sixth floor, a sign indicating “this building is the building occupied by the confinement (Possession) Committee.”

(v) On November 30, 2006, Nonparty 3 also leased the instant hotel rental deposit to Nonparty 4, KRW 20 million, KRW 2 million monthly rent, and KRW 2 million from December 4, 2006 to December 3, 2009. Accordingly, Nonparty 4 operated the instant hotel from December 4, 2006.

⑹ 한편, 피고들은 소외 1을 상대로 청주지방법원 충주지원 2007가합637호 로 이 사건 공사잔대금 청구소송을 제기하여 2007. 11. 2. 위 법원으로부터 전부승소판결을 선고받았고, 위 판결이 그 무렵 그대로 확정되었다.

B. The Plaintiff’s process of requesting a voluntary auction

(1) On September 2, 2005, the Plaintiff lent 1.9 billion won to Nonparty 1 on September 22, 2006 at the due date for reimbursement of KRW 7.5% per annum. As a security, the Plaintiff made a registration of the establishment of a neighboring mortgage with the maximum debt amount of KRW 2.7 billion with the instant land owned by Nonparty 1 and Nonparty 1’s wife as joint collateral, with the instant land owned by Nonparty 1 as joint collateral.

Shell, as the disposition on default, the Chungcheong City seized the hotel of this case on September 23, 2005, the land of this case on December 29, 2005, and the two land of this case on October 20, 206, respectively, and registered the seizure.

Article 28(1) of the Civil Act provides that "No person shall register the provisional seizure of the hotel of this case as of October 20, 2005" and "no person shall register the provisional seizure of this case as of October 27, 2005" and "no person shall register the provisional seizure of this case as of December 9, 2005" and "no person shall register the provisional seizure of this case as of May 30, 2006" and "no person shall register the provisional seizure of this case's land as of December 27, 2005" and "no person shall register the seizure of this case's land as of May 30, 2006"

• However, the plaintiff applied for a voluntary auction as the non-party 1 did not pay the above debt properly. Accordingly, on December 22, 2006, the decision to commence the auction was made on December 22, 2006 at Cheongju District Court Decision 2006ta-do 10091, and on December 26, 2006, the decision to commence the auction was made, and the entry of the decision to commence the auction was registered.

(v) On the other hand, on February 12, 2008, the Defendants stated that, at the time of the investigation into the above voluntary auction procedure, the Defendants exercised a lien with the payment of the construction cost as the secured claim, and that they currently leased and possess the instant hotel to Nonparty 4.

2. Summary of the parties' arguments;

A. The Defendants asserted that the Defendants exercised the right of retention while occupying the instant real estate from November 18, 2006 by taking the claim for construction price against Nonparty 1 as the secured claim.

B. On the contrary, the Plaintiff exercises the right of retention by asserting that the Defendants did not occupy the building of this case or did not possess the claim for construction cost against Nonparty 1, and thus, the Defendants are the most lien holder. ② Home Affairs and the Defendants owned the claim for construction cost against Nonparty 1, and even if they possessed the building of this case without the consent from Nonparty 1 or Nonparty 2, it cannot be deemed as illegal possession and thus a lien is established. ③ In addition, as long as the Defendants had already occupied the building of this case before November 18, 2006, the seizure registration under the name of Chungcheong City and the provisional seizure entry registration under the name of Nonparty 1 were completed, the possession of the Defendants cannot be asserted against the Plaintiff, who is the creditor for auction.

3. Determination

A. Determination on the part of the claim against Defendant 10

In order for a lien under Article 320(1) of the Civil Act to occur, the claim shall be “a claim arising in relation to the thing.” Thus, it shall be a claim arising from the subject matter itself or a claim arising from the same legal relationship or fact relevance as the right to claim the return of the subject matter. Even according to Defendant 10’s assertion, Defendant 10’s claim against Nonparty 10 is a claim for the purchase of goods, such as strings, i.e., e., instant real estate, or a claim for the purchase of goods, which Defendant 10 holds against Nonparty 1. It is difficult to view that the above claim constitutes a case where the pertinent claim occurred from the instant real estate itself or where the same legal relation or fact relevance

B. Determination on the part of the claim against the Defendants (excluding Defendant 10; hereinafter the same shall apply)

(1) First, as to whether the Defendants possessed the building of this case, the Defendants owned a claim for construction cost as stated in the attached Form 2 against Nonparty 1 as to whether the Defendants possessed the building of this case. On November 18, 2006, Nonparty 1 and Nonparty 2, his wife, delivered the hotel of this case, and leased it to Nonparty 4. As seen earlier, the Plaintiff’s above ① and part of the claim are without merit.

Belgium However, the defendants' possession of the real estate of this case was already transferred by the non-party 1 and his wife to the defendants prior to the transfer of possession of the real estate of this case by the non-party 2, and the hotel of this case on September 23, 2005, the land of this case on December 29, 2005, and the seizure registration was completed after seizing the land of this case on October 20, 2006. As seen above, the transfer of possession of the real estate of this case to the defendants after the completion of the seizure registration of this case constitutes a disposal act which might reduce exchange value of the object, and thus, it violates the prohibition of disposition of seizure and thus, the defendants who possessed the real estate of this case after the seizure registration of this case cannot oppose the buyer of the auction procedure of this case on the ground of the lien for the repayment of the contract price claim, and therefore, the plaintiff, the right of retention can also be asserted. The plaintiff's above part of the plaintiff's assertion is justified.

C. Sub-committee

Ultimately, the Defendants’ lien on the instant real estate does not exist. As long as the Defendants asserted a lien on the said real estate in the voluntary auction procedure in this case, the Plaintiff, a mortgagee, has a benefit to seek confirmation of the absence of a lien against the Defendants in order to prevent delay in the auction procedure due to the Defendants’ claim of lien, fall in the price of a successful bid, and the decrease in the amount of the Plaintiff’s dividends thereafter.

4. Conclusion

Therefore, the plaintiff's claim against the defendants is justified and it is so decided as per Disposition.

[Attachment]

Judges Jeon Byung-hee (Presiding Judge) (Presiding Judge)