[1] Requirements for a creditor to seek tort liability against a third party's damage caused by the seizure of a third party's property that is not a debtor by an execution officer

[2] In a case where a creditor did not have intention or negligence at the time of seizure but thereafter maintained the condition of seizure even if he knew, or could have easily known, that the subject matter was owned by a third party, whether the creditor is liable to compensate for damages arising from illegal execution from the time he knew, or could have easily known, that the subject matter was owned by a third party (affirmative)

[1] In order to compensate for damages to a third party caused by the seizure of a third party's property, not a debtor, the creditor should have known or failed to know that the subject matter was the third party's property at the time of seizure, in addition to the fact that the creditor is liable for damages to the third party, not the debtor, and such intention or negligence cannot be presumed immediately from the fact that the subject matter of seizure was owned by a third party, not the debtor.

[2] Even if a creditor did not have intention or negligence at the time of seizure, if the creditor continues to maintain the condition of seizure even though he knew or could have easily known that the subject matter of seizure was owned by a third party, he/she cannot be exempted from liability for damages due to illegal execution from the time he/she knew or could have easily known that the subject matter of seizure was owned

[1] Article 750 of the Civil Act / [2] Article 750 of the Civil Act

[1] Supreme Court Decision 67Da2780 decided Feb. 27, 1968 (No. 16-1, 113), Supreme Court Decision 87Meu1962 decided Mar. 8, 198 (Gong198, 660) / [2] Supreme Court Decision 74Da27 decided Jun. 11, 1974

Tran Heavy Industries Co., Ltd. (Attorney Choi Jae-ho, Counsel for the plaintiff-appellant)

Gap Metal Co., Ltd. (formerly: Gap's Machinery Co., Ltd.) (Attorney Kim Sung-sung, Counsel for the plaintiff-appellant)

Daegu High Court Decision 97Na5559 delivered on November 13, 1998

All appeals by the defendant and the supplementary appeal by the plaintiff are dismissed. The costs of appeal and the supplementary appeal are assessed against each appellant.

1. First, the defendant's grounds of appeal are examined.

A. As to the first ground for appeal

The court below found that around September 194, the defendant's above non-party 1 was non-party 4's non-party 9's non-party 9's non-party 9's non-party 9's non-party 1's non-party 9's non-party 9's non-party 1's non-party 9's non-party 9's non-party 9's non-party 1's non-party 9's non-party 9's non-party 9's non-party 1's non-party 9's non-party 9's non-party 9's non-party 9's non-party 1's non-party 9's non-party 1's non-party 9's non-party 2's non-party 9's non-party 1's non-party 9's non-party 1's non-party 9's non-party 1's non-party 9's non-party 1's non-party 9's non-party 9's non-

Furthermore, the court below determined that, in this case where the machinery of this case attached by an execution officer upon delegation by the defendant was an object owned by the plaintiff, not a non-party company, and thus it was illegal execution, the defendant should have investigated whether the machinery of this case was owned by the plaintiff at least when the mail verifying contents sent by the plaintiff was delivered to the defendant on May 15, 1995, and if the defendant had faithfully investigated, he could have known that the owner was the plaintiff, and if he knew that the machinery of this case was owned by the plaintiff, he should immediately cancel the execution, and that the defendant did not know that the machinery of this case was owned by the plaintiff and maintained the above illegal execution without knowing that the machinery of this case was owned by the plaintiff. Thus, the defendant is liable for damages caused by the plaintiff's failure to exercise the ownership of the machinery of this case.

In order to compensate for damages to a third party caused by the seizure of property by a third party, not a debtor, the creditor should not be aware that the subject matter of the seizure was the third party's property at the time of the seizure, in addition to the fact that the creditor was aware of, or was negligent in, the fact that the subject matter of the seizure was owned by a third party, not the debtor, at the time of the seizure. Such intention or negligence cannot be presumed immediately as it was pointed out in the ground of appeal.

However, even if the obligee did not have intention or negligence at the time of seizure, if the obligee continued to maintain the seizure condition even though he knew or could have easily known that the subject matter was owned by a third party, it shall not be exempted from liability for damages caused by illegal enforcement from the time he knew or could have easily known that the subject matter was owned by a third party (see Supreme Court Decision 74Da27, Jun. 11, 1974).

In light of the records, the plaintiff company had a branch office in Daegu Si, the location of the principal office of the defendant company, and engaged in the manufacturing and selling business of machinery like the defendant company, and the defendant was well aware of the plaintiff company. In the sale of the machinery of this case like the machinery of this case, the seller's ownership was reserved until the purchase price is paid in full. The defendant's execution bond which seized the machinery of this case is also the sales and sale right of the non-party company in the same manner as the non-party company. Further, on January 26, 1995, the machinery of this case was not included in the list of machinery in the non-party company's factory located in Geumcheon-gu, Geumho-gu, Seoul, which is the object of the transfer security established to secure the defendant's execution right between the defendant and the non-party company. In light of this, at least, the defendant did not know that the plaintiff's ownership of the machinery of this case was cancelled by mail, and therefore, it cannot be seen that the defendant of this case's illegal construction of this case's machinery within a considerable period of time and tort.

The ground of appeal on this point is rejected.

B. As to the second, third, and fourth points

As to the amount of damages to be paid by the Defendant, the lower court acknowledged that the market price of the instant machinery as of May 31, 1995, was KRW 884,352,00 as of May 31, 1995, and around May 9, 1996, which became final and conclusive by the said Daegu District Court Decision No. 95Gahap8960 ("604,656,000 of the lower judgment") was KRW 640,656,00 ("65,000 of the lower judgment"), which is equivalent to the difference between the above market price, was KRW 243,696,00 (84,352,00-640,640,656,000), and assessed the amount of damages to the Plaintiff.

The damages suffered by the plaintiff, who is a manufacturer of machinery due to the defendant's tort, are damages caused by the limitation of the right to dispose of the machinery of this case by the execution of seizure of the machinery of this case. Thus, the court below is just in calculating the amount of damages as above and there is no error of law such as

In addition, the plaintiff did not indicate that the machinery of this case was owned by the plaintiff while selling the machinery of this case to the non-party company as the ownership reservation book, and it cannot be viewed as a ground for negligence limiting the amount of damages due to the defendant's illegal execution as seen above.

In addition, as long as the Plaintiff’s amount of damages due to the Defendant’s illegal execution is considered to be the difference in the market value of the instant machinery, in the instant case where, even if the Plaintiff agreed to keep the instant machinery in the Plaintiff Company on December 30, 1995, it was recognized that the Plaintiff did not actually use or obtain the said machinery, the amount of benefits available therefrom should not be deducted from the amount of damages in the instant case.

All of the arguments in the grounds of appeal on this point cannot be accepted.

2. Next, we examine the Plaintiff’s grounds of incidental appeal.

A. On the first ground for appeal

The court below rejected the plaintiff's assertion on the ground that there is no evidence to prove that the defendant knew, or did not know, that the machinery of this case was not owned by the non-party company at the time of seizure execution of the machinery of this case.

In light of the records, the court below's measure is just and there is no error of finding the ground and time of tort liability, or the time and scope of damages.

The argument of the grounds of incidental appeal regarding this point is unacceptable.

B. On the second ground for appeal

The adoption of one of the two different appraisal results belongs to the exclusive authority of a fact-finding court unless it violates the rules of evidence (see Supreme Court Decision 93Meu409 delivered on December 28, 1993).

In light of the records, the court below's rejection of the appraisal result of the non-party 1 in the court of first instance on the market price of the machinery of this case and the calculation of the plaintiff's damages by adopting the appraisal result of the non-party 2 in the court below's judgment is just,

We cannot accept the assertion of the grounds of incidental appeal regarding this point.

3. Therefore, the defendant's appeal and the plaintiff's incidental appeal are all dismissed, and the costs of appeal and the incidental appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-sik (Presiding Justice)