Lice Plus Co., Ltd. (Law Firm LLC et al., Counsel for the defendant-appellant)

New-gu Construction Co., Ltd. (Law Firm Jeongsese, Attorney Song-jin, Counsel for defendant-appellant)

Seoul Central District Court Decision 2018Gahap513653 Decided July 19, 2018

December 11, 2018

1. Revocation of the first instance judgment.

2. All the lawsuits filed against the plaintiff's main claim and the conjunctive claims filed at the trial shall be dismissed; and

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

A. The primary purport of the claim

In accordance with the Seoul Central District Court Decision 2016Gahap34538 or the appellate court judgment, where part of the real estate listed in the separate sheet No. 1, 2, 3, 4, 5, 6, 7, 8, 9, and 1, other than the 129.54 square meters in part on the ship connected each of the real estate listed in the separate sheet No. 2, 2, 3, 4, 5, 6, 7, 8, 9, is delivered to the defendant, the defendant shall deliver to the plaintiff the remaining part of the real estate listed in the separate sheet No. 1, 2, 3, 4, 5, 6, 7, 8, 9, and 1, 129.54 square meters in sequence connected each of the real estate listed in

B. Preliminary purport of claim

In accordance with the Seoul Central District Court Decision 2016Ga34538 building delivery ruling or its appellate trial ruling between the Plaintiff and the Defendant, where the remainder of the real estate listed in the separate sheet No. 1, 2, 3, 4, 5, 6, 7, 8, 9, and 1, other than the 129.54 square meters in the table No. 1, 2, 3, 4, 5, 6, 7, 8, 9 and 1, among the real estate listed in the separate sheet No. 1, is delivered to the Defendant, the Defendant: (a) handed over the part of the real estate trust listed in the separate sheet No. 2, 1, 2, 3, 4, 5, 6, 7, 8, 9, and 1, which are successively connected to the real estate listed in the separate sheet No. 1, 129.5

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Facts of recognition;

A. On January 20, 2006, the Defendant was awarded a contract with the Nonparty on the construction cost of KRW 13.2 billion (including value-added tax, and the construction cost thereafter was increased to KRW 20.24.1 million) for the construction work of constructing a new building (the name of the building omitted) on the land of Dongjak-gu Seoul ( Address omitted) and 7 parcels owned by it, as indicated in the attached Table 1 list (hereinafter “instant building”).

B. On August 31, 2006, the Defendant started the new construction of the instant building and completed the new construction on or around September 17, 2007, and the Nonparty completed the registration of ownership transfer based on the trust in Korea Land Trust Co., Ltd. (hereinafter “Korea Land Trust”) at the same time as the registration of ownership preservation on the instant building was completed on October 10, 2007.

C. After that, the Korea Land Trust proceeds with a public auction procedure for the instant building as stipulated in the above trust agreement, and the Plaintiff entered into a sales contract for the instant building with the Korea Land Trust on May 6, 2008 after receiving a successful bid of the instant building in the said public auction procedure. On September 1, 2016, the Plaintiff completed the registration of transfer of ownership based on the trust to the New Real Estate Trust Co., Ltd. (hereinafter “New Real Estate Trust”) simultaneously with completing the registration of transfer of ownership for the instant building on September 1, 2016 (hereinafter “instant trust contract”).

D. At the time when the Plaintiff acquired ownership of the instant building, the Defendant occupied the part of the 2nd underground floor mechanical room of the instant building (hereinafter “the part of the 2nd underground floor”) and owned the remainder, excluding the 129.54 square meters of the portion on board, which was successively connected to each of the items of the 1st underground floor of the instant building, by having his employees stay in the 2nd underground floor of the instant building and manage corrective devices installed in the instant building. As such, the Defendant asserted the right to retention of the instant building by occupying the parts, excluding the 129.54 square meters of the portion on board, which was successively connected to each of the items of the 1st underground floor of the instant building.

E. On September 2016, the Plaintiff: (a) replaced the parking lot entrance of the instant building and the existing corrective devices installed on the right side of the door door to prevent the Defendant from having access to the instant building; and (b) on November 2, 2016, the Seoul Central District Court changed the Plaintiff’s claim against the Defendant on the ground that “In accordance with the instant trust agreement, the Plaintiff still has the right to possess and use the instant building in relation to the relationship with the real estate trust, the owner of the instant building, as the preserved claim, using the right to occupy and use the instant building as the preserved claim; and (c) filed the instant lawsuit on behalf of the Plaintiff on behalf of the Plaintiff, seeking the delivery of the parts of the mechanical room possessed by the Defendant who was permanently stationed in the instant building (after that, the Plaintiff changed the Plaintiff’s claim to “the object of request for delivery” and “the current claim as the object of claim to be excluded” on February 9, 2018).

F. Furthermore, around November 13, 2016, the Plaintiff entered the part of the machinery room where the Defendant’s employees were permanently stationed and the part on the ground floor 101, where the Defendant kept the house, and started to occupy the instant building alone.

G. Accordingly, on November 30, 2016, the Defendant filed a lawsuit against the Plaintiff for the restoration of possession of “the content that seeks to deliver the building excluded from dental license for the deprivation of possession by the Plaintiff,” Seoul Central District Court 2016Gahap34538, and the said court rendered a judgment to the effect that “the Plaintiff (the Plaintiff of the instant case) won the entire winning judgment on December 7, 2017.” Accordingly, the Seoul High Court appealed to this effect on Seoul High Court 2017Na2076716, and the said court rendered a judgment to the effect that “part winning the Defendant (the Plaintiff of the instant case)” on December 28, 2018 [the part for which the claim by the Defendant (the Plaintiff of the instant case) was dismissed is part of the 1st, 1st, and 2nd underground, which is due to the grounds that “the Plaintiff does not directly occupy the said part by leasing it to another person” (hereinafter referred to as “related case”).

H. In the first instance judgment of the relevant case, the provisional execution was attached to the order ordering delivery. Accordingly, the Defendant commenced provisional execution after the first instance judgment of the relevant case was pronounced. However, according to the Plaintiff’s decision to suspend compulsory execution as Seoul High Court Decision 2018Kadan20020, the Defendant was unable to recover possession of the building excluded from dental treatment.

【Ground of recognition】 The fact that there has been no dispute, obvious fact in this court, entry of Gap evidence 1 through 7, 33, 40 evidence Nos. 1 through 3, 19, and the purport of whole pleadings

2. Ex officio determination on the legitimacy of a lawsuit

A. According to the instant trust agreement, the Plaintiff asserts that “the Plaintiff has the right to possess and use the building of this case in relation to the trust of biological real estate, the owner of the building of this case,” and asserts that “The Plaintiff has the right to possess and use the building of this case as preserved bonds, by subrogationing the right to possess and use the building of this case, on the condition that dental buildings shall be delivered to the Defendant according to the judgment of the first instance court of the relevant case or the judgment of the appellate court, and that “it shall be delivered to the Plaintiff a dental excluded building of this case,” and that “the Plaintiff shall deliver the building of this case

B. We examine the plaintiff's lawsuit as to the main and conjunctive claim of this case (hereinafter referred to as "the lawsuit of this case"), except where it is necessary to specifically mention the main and conjunctive claim of this case (hereinafter referred to as "the plaintiff's lawsuit of this case"), is a lawsuit seeking "the delivery of a building excluded from dental duties" under the condition that the building will be delivered to the defendant. Thus, in order for the lawsuit of this case to be lawful as a lawsuit of this case, the legal and factual relation, which serves as the basis of the claim of this case, exists at the time of the closing of argument, and such situation should be expected to continue, and it is necessary to file in advance (see Supreme Court Decision 95Nu4902, 4919, Nov. 11, 199, etc.).

However, as seen earlier, it cannot be determined at the present stage as to whether the defendant was unable to recover possession at the present stage (it is not different even if the appellate court’s judgment was rendered and the order to order delivery was provisionally executed). As such, the lawsuit in this case cannot be deemed as having existed at the time of closing of argument in the trial, and it is not necessary to seek implementation in advance, since the legal and de facto relationship, which serves as the basis for the occurrence of the claim, exists at the time of closing of argument in the trial, and such status is anticipated to continue. [ our Civil Act recognizes the right to claim the recovery of possession as one of the protective methods for the act of the act of the deprivation of possession, distinguishing from the main right, by protecting “the de facto control status of the object” itself, while recognizing the right to claim the recovery of possession as one of the protective methods for the act of the deprivation of possession. Article 208 of the Civil Act provides that “The lawsuit arising from the right to possess possession does not affect one another, and the lawsuit of possessory right cannot be tried on the ground of this case.”

3. Conclusion

Thus, all of the plaintiff's main and conjunctive claims shall be dismissed. The judgment of the court of first instance shall be revoked differently from the court of first instance, and all of the plaintiff's main and conjunctive claims filed in the court of first instance shall be dismissed.

(attached Form omitted)

Judges Lee Kang-won (Presiding Judge) early heat