Whether delivery by compulsory execution constitutes a peaceful requirement in bona fide acquisition

If a movable is delivered by means of compulsory execution, it cannot be said that the requirements of peace in bona fide acquisition are met.

Article 249 of the Civil Act

Plaintiff

Defendant

Gwangju District Court of the first instance (4291 Resident18)

The original judgment shall be revoked.

The defendant shall deliver to the plaintiff the attached list movables, and shall pay to the plaintiff the amount calculated by converting the amount of 5,000 currency per day from September 4, 290 to the completion of delivery of well-known movables.

The total cost of litigation shall be borne by the defendant.

The attorney of the plaintiff (appellant) is seeking a judgment in the order Dong branch, and the defendant (appellant)'s attorney is seeking a judgment dismissing the public prosecution.

The Plaintiff’s de facto statement is the cause of the claim. The Plaintiff’s attorney stated in the attached list was originally owned by Nonparty 1. Nonparty 2 assessed this case from Nonparty 1 on March 6, 290 on a short-term of KRW 3 million, assessed the building on which such movable was installed at KRW 4 million, and then purchased this case at KRW 4 million in the same reality, and then delivered it again to the Plaintiff at KRW 2 million in the same time, rather than the production price of the entire product produced at the same factory, on the condition that Nonparty 2 would not own the movable at a lower price than KRW 100,000,000. The Plaintiff was aware that it was difficult for the Plaintiff to own the movable at the same time, and that it was an executory judgment against Nonparty 1 on a short-term period of KRW 15,000,000, which became final and conclusive by Nonparty 2 to whom this case was delivered by the Defendant to Nonparty 1, who was an executory judgment against the Defendant on a short-term of KRW 15,0.

The plaintiff's attorney is the answer that the main movable was owned by the non-party 1, and that the defendant executed compulsory execution against the main movable on the plaintiff's temporary basis based on the original copy of the judgment with executory power with the plaintiff's principal and the non-party 1. However, other facts are denied. The defendant purchased the main movable from the non-party 1 in wartime on March 16, 290, acquired indirect possession through the same possession amendment, and provided the non-party with an agent, and completed the claim for extradition of the movable against the non-party after the winning judgment became final and conclusive, and completed compulsory execution against the delivery of the movable on the basis of the original copy of the judgment with executory power, so the plaintiff's claim is legally unfair, and even if the defendant and the non-party 1 conspired with the plaintiff's principal, it is impossible to respond to the plaintiff's claim because the plaintiff cannot raise an objection due to the reasons before the judgment becomes final and conclusive.

As evidence, the plaintiff's attorney submitted the evidence Nos. 1 through 6 and invoked the testimony of the non-party No. 3 of the original trial witness, sought the summons of the non-party No. 3 at the trial before remand, and recognized the establishment of the evidence No. 1 to 3, and the defendant's attorney submitted the evidence Nos. 1 to 5 and sought the summons of the non-party No. 1 to 5 at the trial of the party and stated that the evidence No. 6 is the site.

If Gap evidence Nos. 1 through 5, Gap evidence Nos. 6, the authenticity of which is recognized by the statement No. 5, is combined with the testimony of the non-party 3 and the batteries of the plaintiff's argument, the non-party 2 purchased from the non-party 1 the whole of the factory (movable and real estate) including the movable property owned by the Dong at a price of 4 million won for the short-term 4290.3.6, the non-party 1 delivered the same movable property to the Dong, but the non-party 2 delivered the same movable property to the Dong, the non-party 2 was entrusted with the same movable property to the plaintiff who is a punishment of Dong-in Korea for the reason of being China. The plaintiff was entrusted with it and the plaintiff was leased to the non-party 1 on May 9, 200, again leased it to the plaintiff and the plaintiff's testimony to the non-party 1 by lending the whole movable property to the Dong up to two million won, the non-party 1 cannot be admitted as a witness.

The fact that the Defendant filed a claim for delivery of movable property against Nonparty 1 on the ground of purchase of the movable property and obtained the final judgment in favor of the Defendant, and completed the execution of delivery of the movable property based on the original copy of the judgment with executory power of this year, which can be recognized by the evidence Nos. 1 and 2, which is not disputed in the establishment of this case. In addition, after Nonparty 1 sold the movable property to Nonparty 2 who is the Plaintiff’s trust, it again leased it from the same person, and the possession agent of the same person occupies it. As such, the Defendant purchased it from Nonparty 1 who is the non-competent authority without ownership as to the movable property. Accordingly, the Defendant filed a claim for delivery of movable property against the same Nonparty, obtained the final judgment in favor of the Defendant, and completed the delivery execution by the original copy of the judgment with the executory power of this year, which is the acquisition from an unauthorized person without ownership, and the requirements for immediate acquisition of the movable property, peace, good faith, and free performance, which can not be considered as having been acquired by compulsory execution.

The defendant obtained a favorable judgment against the non-party 1 and received this movable property based on the original copy of the judgment with executory power, so even if there was a competitive tort between the defendant and the non-party 1, it is impossible for the plaintiff to raise an objection. Accordingly, the plaintiff's claim is legally unjustifiable. However, according to the evidence No. 3 of No. 3 of No. 4290 between the plaintiff and the defendant, the plaintiff filed an objection after the completion of compulsory execution of this case's movable property, and the plaintiff rejected the plaintiff's right to raise an objection. Further, according to the evidence No. 4 of No. 1 of No. 4 of this case, the defendant did not deny the plaintiff's right to raise an objection. Thus, even if the defendant obtained the main movable property by stealing the non-party 1 and forged the sales contract with the non-party 1, and thus, it cannot be said that the defendant did not know that the defendant acquired the movable property from the non-party 1 as evidence, even if it can be confirmed as a final judgment.

Therefore, since the plaintiff's claim for return based on ownership of the principal movable is legitimate, the defendant is obligated to deliver it to the plaintiff.

Then, the plaintiff's claim for damages was accepted illegally, and the defendant did not use it to the plaintiff. Thus, the defendant has a duty to compensate the plaintiff for losses incurred by the plaintiff from September 4, 290, the next day that he received from the plaintiff to the time he delivers the movable property to the plaintiff. According to the testimony of the non-party 3, according to the non-party 3, when using the movable property, it can be recognized that the net profit is 6,000 won a daily average amount after deducting the raw material expenses, personnel expenses, and miscellaneous expenses, and then the plaintiff's claim is legitimate to the extent of this period. Thus, the defendant is obligated to pay the amount calculated by the ratio of 5,000 % a daily amount per annum.

In other words, the plaintiff's claim is justified in its entirety. The judgment of the court below, which is the purport of this case, is unfair, and the plaintiff's principal case is reasonable, so it is revoked by Article 386 of the Civil Procedure Act, and the costs of lawsuit are decided by Article 95 and Article 89 of the same Act.

Judges Kim Byung-chul (Presiding Judge) and Lee Dong-dong