[1] Whether the “water hotel, water restaurant, or water performance hall” under the proviso of Article 26 subparag. 4 of the Ship Act is an example of the type of “water-type floating barge” as a vessel excluded from a ship to which Article 8 of the Ship Act, etc. does not apply to the registration and enrollment of a ship (affirmative)

[2] In a case where Gap corporation purchased a ship of 144t gross tonnage and registered for the transfer of ownership, and obtained permission for the occupation and use of the water-related leisure business in the above ship, and Eul purchased the above ship from Eul and operated water-related leisure business under the condition that Eul did not complete the registration of ownership transfer but delivered the above ship during the compulsory auction procedure for corporeal movables, Eul acquired the above ship from Eul, and thereafter Gap corporation did not grant permission for the voluntary auction on the ground that Eul was the owner of the ship at the commencement of the voluntary auction procedure, the case affirming the judgment below which held that Eul's purchase of the above ship during the compulsory auction procedure for corporeal movables constitutes an floating structure under the proviso of Article 26 subparagraph 4 of the Ship Act, and thus, Eul's purchase of the above ship against Article 172 of the Civil Execution Act, and Eul did not legally acquire the ownership

[1] Article 2 of the Ship, etc. Techniques provides, “This Act shall not apply to a flag ship with a gross tonnage of at least 20 tons, sailing ship, and barge with a gross tonnage of at least 100 tons: Provided, That the main sentence of Article 26 Subparag. 4 of the Ship Act provides, “a barge installed by fixing it on the water to be used for mooring, storing, etc. among a barge with a gross tonnage of at least 20 tons shall not apply to any floating structure-type barge, such as a floating hotel, floating restaurant, or floating performance restaurant, etc., with permission for occupation or use under Article 8 of the Public Waters Management and Reclamation Act or with permission for occupation and use under Article 33 of the River Act,” and the proviso provides, “a barge installed on the water to be used for mooring, storing, etc. among a barge with a gross tonnage of at least 20 tons shall be excluded.”

The proviso to Article 26 subparagraph 4 of the Ship Act purports to include floating structure-type barges, such as floating hotels, floating restaurants, and floating performance halls, in preparation for the activation of the construction of floating structures due to the increase in demand for water-related leisure activities, etc., in the subject matter of registration under the Ship Act, and allow registration thereof. In full view of the language and purport of the proviso to Article 26 subparagraph 4 of the Ship Act, the floating hotel, floating restaurant, or floating performance hall under the proviso to Article 26 subparagraph 4 of the Ship Act shall be deemed as an example of floating structure-type barges.

[2] In a case where Gap corporation purchased a barge of 144t total tonnage and completed a registration of transfer of ownership by obtaining permission for occupation and use under Article 33 (1) of the River Act, Eul corporation acquired the above ship from Eul and received water-related leisure business permission from Eul without completing the compulsory sale procedure but did not register ownership transfer, Byung corporation operated water-related leisure business in the above ship after acquiring the above ship from Eul, but Eul did not complete the registration of ownership transfer, but Eul corporation was operating water-related leisure business in the above ship. After which Gap corporation decided to establish a neighboring mortgage registration for the above ship, and upon Gap's voluntary auction procedure was commenced upon request of definition as a mortgagee, Byung corporation requested Eul to refuse voluntary auction on the ground that it was the owner of the above ship, the court below affirmed the judgment below's judgment that Byung acquired the above ship's ownership against the above Article 26 (4) 4 of the Ship Act, since Eul's construction of structures such as 10% thickness concrete on the ship, etc., and it did not legitimately acquire the above ship from Byung's compulsory auction procedure.

[1] Article 2 of the Ship Registry Act, Article 8 and Article 26 subparag. 4 of the Ship Act / [2] Article 172 of the Civil Execution Act, Article 2 of the Ship Registry, Article 8 and Article 26 subparag. 4 of the Ship Act

Mamomaa Co., Ltd., Ltd.

Defendant (Attorney Jeong-soo, Counsel for the defendant-appellant)

Cheongju District Court Decision 2018Na5653 decided September 5, 2018

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Whether an floating structure-type barge falls under the category of a ship eligible for registration;

(a) Compulsory execution against a ship which can be registered shall be governed by the provisions concerning the compulsory auction of immovables (main sentence of Article 172 of the Civil Execution Act); and

Article 2 of the Ship, etc. Techniques provides, “This Act shall not apply to a baseline with a gross tonnage of not less than 20 tons, sailing ship, and barge with a gross tonnage of not less than 100 tons: Provided, That Article 26 Subparag. 4 of the Ship Act provides, “A barge installed by fixing it on the water to be used for mooring, storing, etc. among a barge with a gross tonnage of not less than 20 tons shall not apply to any floating structure-type barge, such as a floating hotel, floating restaurant, or water performance theater, which has obtained permission for occupation or use under Article 8 of the Public Waters Management and Reclamation Act or permission for occupation or use under Article 33 of the River Act, shall be excluded.”

The proviso to Article 26 subparagraph 4 of the Ship Act purports to include floating structure-type barges, such as floating hotels, floating restaurants, and floating performance halls, in preparation for the activation of the construction of floating structures due to the increase in demand for water-related leisure activities, etc., in the subject matter of registration under the Ship Act, and allow registration thereof. In full view of the language and purport of the proviso to Article 26 subparagraph 4 of the Ship Act, the floating hotel, floating restaurant, or floating performance hall under the proviso to Article 26 subparagraph 4 of the Ship Act shall be deemed as an example of floating structure-type barges.

B. The lower court rejected the Plaintiff’s claim seeking the denial of voluntary auction on the instant vessel for the following reasons.

(1) On July 29, 2005, Nonparty 1 and Nonparty 2 registered the ownership transfer of the instant vessel on July 29, 2005, but on January 10, 2007, Nonparty 1 and Nonparty 2 registered the ownership transfer of the instant vessel to SPP.

U.S. S.S. Co., Ltd. purchased the instant vessel from SPP on March 17, 2010, and completed the registration of ownership transfer on May 14, 2010. U.S. Co., Ltd. used the instant vessel for mooring vessels, etc. from around the purchase date to June 19, 2013. On May 16, 2010, U.S. obtained permission to occupy and use the instant vessel pursuant to Article 33(1) of the River Act from the Incheon City on May 16, 2010, and carried on water-related leisure business on the instant vessel.

(2) On June 19, 2013, Nonparty 3 purchased the instant vessel during the compulsory auction procedure for corporeal movables against the instant vessel, paid the purchase price, and delivered the instant vessel from the enforcement officer, but did not register the ownership transfer of the instant vessel.

The Plaintiff purchased and delivered the instant vessel from Nonparty 3 on June 20, 2013, and thereafter, from around that time, fixed the instant vessel on the water and used it for mooring vessels, etc. The Plaintiff is running water-related leisure business on July 13, 2013 by taking over all water-related leisure business and permission rights from Skis Co., Ltd., and doing water-related leisure business on the instant vessel.

(3) On March 10, 2017, U.S.C., Inc., filed a lawsuit seeking the refusal of voluntary auction on the ground that the Plaintiff is the owner of the instant vessel, seeking the refusal of voluntary auction on the ground that the instant vessel was the owner of the instant vessel, on April 4, 2017, the registration of the establishment of a mortgage, which is the maximum debt amount of 37,000,000,000.

(4) The instant vessel is a barge of 144m gross tonnage. The Plaintiff, on the instant vessel, installed structures, such as a railer, office, sloping room, and monmona 4 structures to use in water-related leisure business by building concrete with a thickness of 10cc. On the instant vessel. The instant vessel constitutes an floating structure under the proviso of Article 26 subparag. 4 of the Ship Act, and thus, constitutes a floating structure under the proviso of Article 26 subparag. 4 of the Ship Act, enforcement should be in accordance with the provisions

The purchase of the instant vessel by Nonparty 3 during the compulsory auction procedure for corporeal movables is null and void against Article 172 of the Civil Execution Act, and the Plaintiff who purchased the instant vessel from Nonparty 3 was not lawfully acquired the ownership.

C. Examining the reasoning of the lower judgment in light of the record, the lower judgment, based on the premise that the instant vessel is an floating structure as provided by the proviso of Article 26 subparag. 4 of the Ship Act and its compulsory execution should comply with the provisions on compulsory auction by real estate, is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by failing to exhaust all necessary deliberations, exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine

2. The remaining grounds of appeal

On the premise that the “(ship name omitted)” recorded in the instant vessel and the ship registry is the same vessel, the lower court determined that the establishment of the instant mortgage cannot be deemed null and void as a false declaration of conspiracy only by the evidence submitted by the Plaintiff.

Examining the reasoning of the lower judgment in light of the record, the lower judgment did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules or by omitting judgment, etc., contrary to what is alleged in the grounds of appeal.

3. Conclusion

The Plaintiff’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won (Presiding Justice)