Jeon-soo (Attorney Jeon Chang-soo et al., Counsel for the defendant-appellant)

C.C (Attorney Park Sung-ho, Counsel for the defendant-appellant)

February 24, 2006

Changwon District Court Decision 2004Gahap2007 Delivered on December 9, 2004

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. including the Plaintiff’s claim extended in the trial:

A. The Defendant collected containers, boxes and all other facilities installed on the above land, including the temporary fence installed by the boundary line or edge connected each point in sequence with each point of the table 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 10, and 1 of the annexed drawings on the ground of 207, 1,228 m3, 3, 4, 5, 6, 7, 8, 9, 10, and 100 m3, 11, 105 in the annexed drawings installed therein, from the Plaintiff; and deliver the above land;

B. As to the above land, it is confirmed that the defendant's lien and its preserved claim do not exist.

3. All costs of the lawsuit are borne by the Defendant.

4. The above paragraph 2 (a) may be provisionally executed.

In addition to the preliminary claim as to the claim as referred to in Paragraph 2(b) of the above order, it is necessary to confirm that the amount of the preserved claim does not exceed KRW 98,050,000 (the plaintiff added a claim other than the above land delivery at the trial).

1. Determination on the Plaintiff’s claim for transfer of land

(a) Facts of recognition;

The following facts are not disputed between the parties, or acknowledged in full view of Gap evidence 1, Eul evidence 2-1 through 6, Gap evidence 3-1 through 3, Gap evidence 4-1 through 5, Eul evidence 6-1 through 23, Eul evidence 1, Eul evidence 3-1 through 7, and the whole purport of pleadings.

(1) On October 14, 2002, the Defendant entered into a contract for the construction of commercial buildings on the ground of 207 square meters large 1,228 square meters (hereinafter referred to as the “instant land”) on the part of the co-defendant of the first instance trial on October 14, 2002, with regard to the construction of commercial buildings on the ground of the Haak-gun, Gyeongdong-gun, Gyeongdong-gun, Gyeongdong-gun, Gyeongdong-gun, Gyeongdong-gu, Gyeongdong-gu, Gyeongdong-gun, Gyeongdong-gun, Gyeongdong-gu, Gyeongdong-gun, Gyeongdong-gun, Gyeongdong-gu, Gyeongdong-gun, Gyeongdong-gu, Gyeongdong-gu, Gyeongdong-do, to the period from November 11, 2002 to August 10, 203, and on October 17, 2002, the Defendant entered into a sales contract on behalf of the above newly constructed.

(2) However, the Defendant subsequently removed the existing 2nd floor buildings on the instant land and commenced the instant construction, and conducted the construction of the ground-breaking construction and the sn beam beam construction, etc. However, on July 2003, the Defendant occupied the instant land while suspending the instant construction on the wind that the snick Construction did not go bankrupt. On the instant land, there are facilities, such as container boxes, including the temporary fences and sn beam beams, on the instant land.

(3) Meanwhile, us bank, a mortgagee of the instant land, filed an application for the auction of real estate rent. On November 25, 2002, the Changwon District Court rendered a decision to voluntarily commence the auction as of November 27, 2002, by the above court 2002ta or 33119, and completed the registration of entering the said decision to commence the auction on the instant land on November 27, 2002, and followed the voluntary auction procedure. As a result, the Plaintiff was awarded the instant land amounting to KRW 951,00,000 and paid the successful bid on March 25, 2004.

B. Determination

According to the above facts, the plaintiff acquired ownership by completely paying the successful bid price with respect to the land of this case. Thus, the defendant who occupies the land of this case is obligated to collect all the facilities, including the temporary fence and the sloping beamline, set forth in Section 2 of the Disposition No. 2 of this case, installed on the land of this case and deliver the land of this case, barring special circumstances.

2. Determination as to the plaintiff's claim for non-existence of lien and the defendant's right of retention defense, etc.

A. The parties' assertion

The Defendant asserts that there exists a lien on the land of this case until he receives the payment for the construction work, since the Defendant has a claim for the construction work against the scam beam construction by conducting the excavation work of the ground and the scam beam construction on the land of this case, after being awarded a contract for the instant construction from the scambing Construction, he seeks confirmation of the existence of a lien on the land of this case, while the Plaintiff cannot recognize a lien by the Defendant, and sought confirmation of the absence of the above lien and its preserved claim, and even if the above lien exists on domestic affairs, he does not exceed KRW 98,050,000.

B. Determination

In the event that the debtor acquired a right of retention on the above real estate by transferring the construction price to the creditor after the seizure took effect on the 2nd 1st 2nd 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 200 6th 6th 6th 6th 200 6th 6th 6th 200 6th 202.

In addition, as to the plaintiff's above lien and its preserved claim's non-existence of such lien, the plaintiff's claim for confirmation is reasonable (as long as the plaintiff's claim for confirmation is accepted, it shall not be judged separately).

C. Determination as to the defendant's defense against the good faith principle

The defendant's assertion that the plaintiff does not recognize the defendant's right of retention after examining the current status of the land of this case, including the temporary fence and the sn beamline installed on the land of this case before receiving the bid price, and acquiring the ownership as a result of the fact, is contrary to the good faith principle. As seen above, as long as the plaintiff lawfully acquired the ownership of the land of this case through the voluntary auction procedure, the above circumstance alone of the defendant's assertion cannot be deemed to contravene the good faith principle, and therefore, the above defense

3. Conclusion

Therefore, the plaintiff's claim is justified. Since the part against the defendant in the judgment of the court of first instance is unfair in conclusion, the part against the defendant is revoked. It is so decided as per Disposition by the assent of all of the plaintiff's claim seeking confirmation of the absence of the above lien and its preserved claim, including the temporary fence and the sloping beamline set up on the land of this case, including the plaintiff's claim extended in the court of first instance.

Judges Yoon Jin-tae (Presiding Judge) (Presiding Judge)