Seoul High Court Decision 200Na11460 decided May 1, 200

onam Construction Co., Ltd and one other (Attorney Clinical-soo, Counsel for the plaintiff-appellant)

May 18, 2010

1. The Plaintiff:

A. Defendant Sanam Construction Co., Ltd: (a) deliver each of the points of the 1,979 square meters of land for a factory in the actual village in Gwangju-si (hereinafter address 1 omitted); (b) 7,010 square meters of land for a factory in the relevant land; (c) 695.52 square meters of a steel frame in the relevant ground and reinforced concrete structure; and (d) 1,2,3,4,5,6,99,100 square meters of a 1,97-4 square meters of the attached drawings; and (d) 60 square meters of the area of the Republic of Korea, each of which was connected to each point of the 1,979 square meters of the adjacent drawings; and

B. The Defendants shall pay the amount of KRW 8,377,524 per month from May 11, 201 to May 11, 2010 and from May 11, 2010 to the completion date of delivery of the real estate mentioned in the above paragraph (a).

2. The plaintiff's remaining claims against the defendant 2 are dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant Yongnam Construction Co., Ltd. is borne by the Plaintiff, and the part arising between the Plaintiff and the Defendant 2 is borne by the Plaintiff, and the remainder is borne by the Defendant 2, respectively.

4. Paragraph 1 can be provisionally executed.

The Defendants, in turn, deliver to each of the items 1,979 m2, 4, 100 m2, 7,010 m2, 7,010 m2, 695.52 m2, 695.52 m2, 40.8 m2, 40.8 m2, and 1,979 m2, and 60 m2,000,000 m2,000,000 m2,000,000,000 m2,000 m2,000 m2,00,000 m2,00,000 m2,00,000 m2,00,000 m2,00,000 m2,00 m2,00 m2,00.

1. Basic facts

The following facts are not disputed between the parties, or acknowledged by comprehensively considering Gap evidence 1-1-4, Gap evidence 2-1, Eul evidence 6-1, Eul evidence 8-1, Eul evidence 8-1, the results of the on-site inspection by this court, and the purport of the whole arguments.

A. The Plaintiff is a company with the purpose of wholesale business of agricultural and fishery products, and Defendant Synam Construction Co., Ltd. (hereinafter “Defendant company”) is a company with the purpose of soil construction business, reinforced concrete construction business, etc., and Defendant 2 is the representative director of the Defendant company.

B. The original Mayor’s 20,010 square meters of factory site in Gwangju City (hereinafter address 1 omitted) was 7,010 square meters (hereinafter address 2 omitted), and the registration conversion and subdivision were changed as of January 31, 2006; hereinafter “instant land”). Nonparty 1, the representative director of the Green Integrated Food Co., Ltd. (hereinafter “non-party company”) owned the non-party 1’s ownership of the non-party 1, and the non-party 6’s voluntary auction procedure for the non-party 20,000 m2 and 70,000,000,000 20,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000.

C. In the auction procedure of this case on April 13, 2009, the Plaintiff received a successful bid from the auction court and paid the successful bid price in full. On June 11, 2009, the Plaintiff completed the registration of ownership transfer with respect to the land and building of this case on June 11, 2009.

D. On October 6, 2008, the Defendant Company reported the lien on the ground that it had a claim for the construction cost of the instant building at the instant auction procedure, and at least from around that time, it occupied the instant land and buildings from that time to the date of closing argument.

2. Determination as to the request for extradition

A. Determination as to the claim against the defendant company

(1) Determination as to the cause of claim

According to the above facts, the defendant company is obligated to deliver the land and buildings of this case to the plaintiff, the owner of the land of this case, as the possessor who possesses the land of this case and the buildings of this case, unless the owner of the land of this case does not assert

(2) Determination as to Defendant Company’s right of retention defense

(A) The defendant company's assertion

Under the construction contract with the non-party company from October 1, 2005 to March 10, 2006, the defendant company had a claim for the construction cost of KRW 370 million against the non-party company, including retaining walls, and the defect construction (hereinafter “the construction of this case”) with respect to the land and building of this case. For the purpose of securing this, the above construction is to occupy the land and building of this case from the date of completion of the above construction. In addition, the defendant company occupied the land and building of this case on February 13, 2008 when it occupied the land and building of this case, and has a claim for the additional construction cost of KRW 160 million (hereinafter “the additional construction of this case”). Accordingly, the defendant company has the right to attract the land and building of this case until the total construction cost of this case is paid KRW 530 million.0 million.

(B) Determination

1) First, we examine whether the Defendant Company acquires a lien in connection with the instant construction project.

A) Existence of the claim for construction price of this case

1) In full view of the following facts: (a) No. 1, (b) No. 10, No. 11-2, No. 3, No. 4-1, No. 2, No. 5-5, No. 6, No. 7, and No. 8-1 of the evidence No. 7-2, and the overall purport of Non-Party 1’s testimony and pleadings, the non-party company concluded a construction contract with Abalen C, No. 1, No. 110, and No. 11-2 of the evidence No. 1, No. 1, No. 4-2, No. 5-7 of the evidence No. 7 of the evidence No. 7 of the evidence No. 1, No. 1, No. 2005; and (b) the non-party company received construction charges from the defendant company from 2003 to 200, No. 700600, Dec. 6, 2005.

2) As to this, the Plaintiff asserted that the Defendant Company extinguished the claim for the construction payment of this case upon receiving the payment of the said construction payment from the Nonparty Company in full, but there is no evidence to acknowledge this. Therefore, this part of the Plaintiff’s assertion

In addition, the plaintiff asserts that the claim for the construction price of this case has already expired, so long as there is no separate assertion as to the period of payment, the claim for the construction price of this case has been calculated from February 2, 2006, which is the time of its establishment, and the three years have passed from that time, as provided in Article 163 subparagraph 3 of the Civil Code. Meanwhile, according to the statement of evidence No. 5-1 of the Civil Code, the non-party company can recognize the fact that the notary public, in relation to the payment for the construction price of this case to the defendant company on February 13, 2008, in relation to the payment of the construction price of this case, was approved by delivering a notarized bill of promissorysory note with the digital law firm's face value amount of KRW 340 million and KRW 30 million,000,000,000, which is the time of its establishment. Thus, the above argument of the plaintiff is therefore null and void.

c) Accordingly, the Defendant Company has a claim for the instant construction cost of KRW 370 million arising in respect of the instant land or building.

B) The time of acquisition of possession of the land and building of the Defendant Company

(1) In a case where the debtor acquired a right of retention by transferring the construction cost of the above real estate to the creditor of the construction cost after the attachment took effect after the registration of compulsory commencement of auction on the real estate owned by the debtor, such possession goes against the prohibition of disposition of seizure under Articles 92(1) and 83(4) of the Civil Execution Act, since the transfer of possession constitutes an act likely to reduce exchange value of the subject matter, it constitutes an act which is in violation of the prohibition of seizure under Articles 92(1) and 83(4) of the same Act, it cannot be asserted against the purchaser of the auction procedure on the ground of the above right of retention (see Supreme Court Decision 2005Da22688, Aug. 19, 2005), Gap evidence 1-1 and 2-2, as to the land of this case, the compulsory commencement of auction on the land of this case should be registered on April 13, 2006, the compulsory commencement of auction on the land of this case should be registered on March 22, 1, 2007.

2) However, in full view of the following circumstances: (a) it is difficult to believe that the testimony of Nonparty 1, as well as the statement of Nonparty 6-1, 2, and part of Nonparty 1, as it is, is difficult to believe; and (b) the images of Nonparty 8-2 through 5, and evidence Nos. 8-1, which, on April 13, 2006 and March 2, 2007, the Defendant Company continued to possess the instant land and buildings and continued to possess them until the closing date of pleadings in the instant case; and (c) there is no other evidence to prove otherwise.

① The Defendant Company submitted 6-2 evidence to the effect that it occupied the instant land and building while installing and using telephone (tel number omitted) and facsimile (fax number omitted) on the instant building. However, according to the result of the fact-finding conducted on December 2, 2009 on the KT Co., Ltd., the above phone was installed in the name of Nonparty 5 on June 17, 2009 and each of the above facsimile 17 July 27, 2009, with the instant land parcel number located at the domicile of each of Nonparty 5, and the fact-finding details of the above phone and facsimile fax fax sat around May and 6, 2009. Thus, it is difficult to deem that the Defendant Company commenced occupying the instant land and building before March 13, 2006 and March 2, 207.

② In addition, the defendant company submitted 6-2 evidence to the effect that the employee of the defendant company worked alternately before April 10, 2009, and that the defendant company occupied the land and the building of this case by means of the work of the non-party 8, 9, 10, and non-party 6, who is the employee of the defendant company from April 10, 2009. However, there is no objective evidence to prove that the employee of the defendant company worked alternately in the land and the building of this case, and according to the result of the inquiry into the Korea Electric Power Corporation of this Court, the electricity use applied under the name of the non-party company of this court on September 26, 2008 was terminated as the electricity charge of the non-party company, and since July 2008, it is difficult to believe that he occupied the land of this case and the building of this case by the method of work of the defendant's employee in the domicile of this case at the land of this case.

③ In addition, according to the statement Nos. 4-1, 2, and 5-1 of the evidence Nos. 1, 2, and 5 of this Court and the fact-finding results on Non-Party 2, appraiser Non-Party 3, and 4 of this Court, the building of this case was closed at the time of investigation and appraisal conducted in the auction procedure of this case, and there is no other person to manage it, and there is no external appearance to know the fact of exercising the right of retention of the defendant company

c) Accordingly, even if the Defendant Company acquired the instant claim for construction price, the Defendant Company cannot claim a lien against the Plaintiff, as long as it cannot be deemed that it occupied the instant land and buildings prior to the registration of the decision on commencing auction. Therefore, this part of the Defendant Company’s assertion is without merit.

2) Next, we examine whether the Defendant Company acquires a lien in relation to the instant additional construction works.

A) According to Articles 92(1) and 83(4) of the Civil Execution Act, after a registration of the decision on commencing the auction has been made on real estate owned by an obligor and the seizure has become effective, the act of disposal on the said real estate by the obligor takes effect against the execution creditor and the purchaser of the auction procedure. Here, the restricted disposal act refers to an act of disposal that is likely to obstruct the achievement of the purpose of auction by reducing the exchange value of the object, such as bearing a new obligation on the auction object or bearing an excessive burden on the former obligation.

B) On the other hand, as alleged by the defendant company, the additional construction of this case was continued while the defendant company acquired possession of the land and buildings of this case and continued possession prior to the entry of the above decision of compulsory commencement of auction, as alleged by the defendant company, but the defendant company entered into the instant additional construction contract between the non-party company and the non-party company on April 13, 2006 and March 2, 2007, which entered the registration of the decision of compulsory commencement of auction as to the land and buildings of this case, with the construction cost of KRW 160 million as to the land and buildings of this case, and entered into the instant additional construction contract between the non-party company and the non-party company on February 13, 2008, with the construction cost of KRW 160 million as to the land and buildings of this case, and thus, it constitutes a disposal act that reduces the exchange value of objects on the land and buildings of this case, and thus, it goes against the effect of prohibition of seizure.

C) This part of the Defendant Company’s assertion is without merit.

(3) Sub-decisions

Therefore, the defendant company is obligated to deliver the land and building of this case to the plaintiff.

B. Determination as to the claim against Defendant 2

In addition, Defendant 2 also sought the transfer of the instant land and building against Defendant 2 on the ground that he illegally occupied the instant land and building as the representative director of the Defendant Company. However, according to the above recognition, Defendant 2 merely occupies the instant land and building as a representative body of the Defendant Company, not an individual, and as such, Defendant 2 cannot be deemed to possess the instant land and building separately from the Defendant Company.

Therefore, this part of the plaintiff's assertion that defendant 2 illegally occupies the land and building of this case is without merit.

3. Determination as to a claim for damages caused by a tort

A. According to the above facts, Defendant 2, as the representative director of the Defendant Company, occupied the instant land and buildings owned by the Plaintiff during the instant auction procedure, even though the Defendant Company was not a lawful source of right, and continued to possess them until the date of closing argument of the instant case, thereby infringing on the Plaintiff’s ownership of the instant land and buildings. As such, the Defendants are liable to compensate each Plaintiff for damages arising from the failure of the Plaintiff to use the instant land and buildings from June 11, 2009 to its delivery, which was completed the registration of transfer of ownership, pursuant to Article 35(1) of the Civil Act.

B. The amount of damages arising from the failure to use or benefit from real estate is equivalent to the rent that can be received in the case of leasing the real estate to another, barring special circumstances. According to the appraiser's appraisal result, the appraiser's non-party 7's rent of the instant land and the instant building, 695.52m2, 40.8m2, 3, 4, 5, 6, 9, and 1m2 in the drawings of steel and reinforced concrete sloping roof factory among the instant buildings, and 1,2, 3, 4, 5, 6, 9, and 1m2, 1, 152, 774m2 from June 11, 2009 to May 10, 2010, the rent of the instant land is 92,152,774m2,37,524m2, and there is no evidence to acknowledge the change of the rent from the date of delivery to the date of May 27, 2015,2071.

4. Conclusion

Therefore, the plaintiff's claim against the defendant company is justified, and the claim against the defendant 2 is accepted within the above scope of recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges O Jae Jae-sung (Presiding Judge)