News Orccom Co., Ltd. (Law Firm Shin, Attorney Kim Chang-soo, Counsel for the defendant-appellant)

3. Judgment (Attorney Jeong-hee, Counsel for defendant-appellant)

January 14, 2009

Ulsan District Court Decision 2007Gahap3076 Decided July 23, 2008

1.The judgment of the first instance shall be modified as follows:

A. The defendant shall be paid 20% per annum for KRW 8,076,767,311 and for KRW 7,576,767,311 from October 1, 2005 to the date of full payment, and for KRW 50,00,000,00 per annum for KRW 8,076,767,311, and for KRW 7,576,767,311 from the plaintiff, and at the same time, shall order the plaintiff to issue a building listed in attached Table 2.

B. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 40% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

3. The above paragraph 1(a) may be provisionally executed.

1. Purport of claim

The defendant shall issue an order to the plaintiff as stated in the attached Table 2, and pay 85 million won per month from May 12, 2007 to the completion date of the order for the above building, and 5% per annum from May 12, 2007 to the first instance judgment and 20% per annum from the next day to the completion date of the order for the above building.

2. Purport of appeal

The part of the judgment of the first instance against the plaintiff shall be revoked. The same shall apply to the purport of the claim.

3. Purport of incidental appeal;

Of the judgment of the court of first instance, the part against the defendant who ordered repayment in excess of the following amount shall be revoked. The defendant shall issue an order for payment from the plaintiff for KRW 8,084,808,681 and for KRW 7,584,808,681 per annum for KRW 20%, KRW 500,000 per annum for KRW 10% from October 1, 2005 to the date of full payment, and at the same time issue an order for a building listed in the attached Table 2 to the plaintiff.

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is as follows: "Claims equivalent to KRW 9,315, 412,150 of the balance of construction work" in Section 5, 19 of the corresponding part of the judgment of the court of first instance shall be "Claims equivalent to KRW 8,076, 767, and 311 of the balance of construction work and claims for delay thereof"; "No. 4" shall be "No. 4, No. 15-1, and No. 15-2"; "No. 6, and No. 7 shall be deleted; the part of the defendant's assertion in Section 1, No. 1, No. 2-A (2), and No. 2-A (4) of the judgment of the court of first instance shall be added to the corresponding part of the judgment of the court of first instance; and it shall be cited as it is as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act, except for the addition of the following judgment in the corresponding part.

2. Parts to be dried;

(a) Part 1 (3), 14, 14, and 21);

Accordingly, on August 19, 2005, U.S. paid 9,591,50,000 won for the remainder of the construction work with the Defendant until September 30, 2005. However, if U.S. is delayed, U.S. shall pay 20% per annum for 9,091,50,000 won, 50,000 won by adding the damages for delay calculated at the rate of 10% per annum to 364,575,00 won from the refund of U.S. value-added tax on October 5, 2005. The Defendant agreed to pay 9,091,50,500 won by September 30, 2005. The Defendant received the claim attachment and assignment order from the Daegu District Court Branch Branch for 664,575,000 won from among the refund of U.S. value-added tax on the original copy of the notarial deed, the Defendant received 3681,63684,67846,6846.

B. Part of the defendant's assertion among 2-A (2) (No. 5, No. 16, and No. 18)

In this regard, the defendant asserts that he has the right to attract new building of this case until he is paid the remainder of the construction work and the delay damages, since he has the claim for the remainder of the construction work of 8,084,808,681 as well as the claim for the delay damages.

(c) Part 2-A (4) (Articles 9, 8, and 11);

On the other hand, in a lawsuit claiming the delivery of a thing, where the defense of the right of retention is cited, the delivery of the thing must be ordered in return for the payment and reimbursement of the claim arising with respect to the thing. Since it can be recognized that the defendant's above claim for the remainder of the construction works or the compensation for delay and the right to request the delivery of the building between the contractor and the two is constituted from the same legal relationship as the contract for the construction of the building between the two. Accordingly, the defendant is obligated from the plaintiff to clarify the new building of this case as payment for the remainder of the construction works, which are the secured amount of the above right of retention, from October 1, 2005 to the day of full payment, 76,767, 311 won, which are the secured amount of the above right of retention, from October 1, 2005 to the day of full payment, 20% per annum, 50,000,000 won, and damages for delay calculated annually by 10%.

3. Additional determination

A. The plaintiff asserts that the new building of this case was constructed by the business agreement between U.S.C., the contractor, and U.S., the contractor, and the defendant, and that the ownership belongs jointly to U.S., the original purchaser, and the defendant. Thus, the right of retention, which is a real right, is not established for the new building of this case. However, the new building of this case is as seen earlier, since U.S., the contractor, has acquired ownership for the original acquisition of ownership, the plaintiff's above assertion is without merit (the part similar to the business agreement between U.S. and the defendant, which

B. The Plaintiff asserted to the effect that there is no lien on the newly constructed building of this case since the claim for the remainder of the construction has not been completed until now even though the Defendant guaranteed the completion of the new building of this case. However, the Defendant did not have a right to retention on the newly constructed building of this case. However, as seen earlier, the Plaintiff’s assertion is without merit, since Chos agreed that the remainder of the construction and its delay damages will be repaid to the Defendant until September 30, 2005 after the construction was suspended due to the delay in the payment of the agreed construction cost.

C. The plaintiff asserts that the lien is extinguished pursuant to Article 327 of the Civil Code, since the KIC, as a security for the construction price, has completed a provisional registration for each land listed in paragraphs 1 through 4 of the attached Table 1 as a security for the construction price, and the film museum 4, 5, and 6 shall be provided to the defendant, and if any balance is not fully paid within one month after the completion, the ownership of the new building of this case and the right to sell the new building of this case and all other rights relating to the building shall be transferred without any condition to the defendant. However, the extinction of the lien pursuant to Article 327 of the Civil Code shall be a real security. The above provisional registration alone is insufficient to secure the construction price claim in light of senior collateral security and superficies, and the remainder claimed by the plaintiff is not actually offered. Thus, the plaintiff's assertion is without merit.

D. The plaintiff, even if the defendant had the right of retention, could have exercised the right to demand an auction for the new building of this case without a separate executive title. However, since the defendant concluded an executory debt repayment contract with the contractor and applied for a compulsory auction on this basis, it can be deemed that the defendant renounced the right of retention. However, the plaintiff's assertion of a right of retention cannot be permitted as it constitutes an abuse of the right. However, the circumstances and evidence required by the plaintiff alone are insufficient to conclude that the defendant renounced the right of retention as alleged by the plaintiff, or that the defendant's assertion of a right of retention constitutes abuse of the right of retention, and there is no other evidence sufficient to acknowledge it differently. Thus, the plaintiff's assertion is not reasonable.

E. The plaintiff asserted that, around April 2005, the voluntary auction procedure for each land listed in paragraphs 1 and 2 of the annexed Table 1 and the voluntary auction procedure for each land listed in paragraphs 3 and 4 of the same Table around July of the same year, and the compulsory auction procedure for each land listed in paragraphs 1 through 4 of the same Table around December of the same year, and for each newly constructed building of this case were combined. Thus, the right of retention due to the defendant's possession after the initial decision of commencement of auction constitutes a disposal act likely to reduce the exchange value of each land of this case, and thus contravenes the effect of prohibition of disposition of seizure under Articles 92 (1) and 83 (4) of the Civil Execution Act. Accordingly, the defendant holding the new building of this case cannot assert the right of retention. However, since the registration of the decision of commencement of auction on each land of this case becomes effective due to the fact that it is against the plaintiff's right of retention for the purpose of exercising the right of retention as the secured claim for the above land itself, it cannot be viewed as a right of retention within the land itself.

4. Conclusion

Therefore, the defendant is obligated to receive from the plaintiff 8,076,767,311 the above construction balance amount to 20% per annum for 7,576,767,311 won from October 1, 2005 to the date of full payment, 50,000, and damages for delay calculated at 10% per annum for 7,576,767,311 won from October 1, 2005 to the date of full payment, and at the same time to order the plaintiff to present the new building of this case. Thus, the plaintiff's claim of this case is justified within the above recognized scope, and the remaining claims are dismissed as without any justifiable reason. Since the judgment of the court of first instance is unfair in part, it is so decided as per Disposition by accepting part of the plaintiff's appeal and the defendant's incidental appeal and to revise the judgment of the first instance court as above

[Attachment]

Judges Kim Il-tae (Presiding Justice)