Won Construction Co., Ltd. (Law Firm New Village, Attorney Song-chul et al., Counsel for the plaintiff-appellant)

Hysung Co., Ltd. (Law Firm Shin & Kim, Attorneys Hun-tae et al., Counsel for the plaintiff-appellant)

September 3, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

As to each real estate listed in the separate sheet to the Plaintiff, the Defendant shall implement the procedures for registering the establishment of a mortgage in the amount of KRW 1,600,000,000 as a result of a subcontract executed on July 20, 203.

1. Facts of recognition;

The following facts may be recognized in full view of each entry in Gap evidence 1 through 6 (including a branch number if there is no dispute between the parties or if there is a serial number) and the whole purport of the pleadings:

A. On October 14, 2002, the Plaintiff entered into a subcontract with an accelerator integrated construction company and each of the real estate listed in the separate sheet awarded by the said company (hereinafter “instant building”) to complete the structural construction by December 1, 2003 and receive remuneration of KRW 1,517,945,000, among the new construction works for each of the real estate listed in the separate sheet awarded by the said company (hereinafter “instant building”).

B. Around March 19, 2003, the said new construction corporation was suspended under the condition that the Plaintiff performed the structural construction work even before the assembly of retaining walls with the second floor. Since then, around April 2003, the Defendant concluded a subcontract for the construction of the instant building with the Plaintiff with the same content as the existing subcontract that entered into with the Plaintiff, which entered into with the cell integrated construction corporation.

C. From April 7, 2003, the Plaintiff resumed construction and completed the structural construction of the instant building on or around July 28, 2003. At the time, the instant building was in progress with 80% of the structural and civil engineering works and 65% of the roof construction works, 54% of the external stone construction works, and 20% of the pipeline construction works, respectively.

D. Around June 1, 2004, the Plaintiff and the Defendant increased the remuneration of the said Cement to KRW 1,602,117,200. On February 13, 2007, the Defendant agreed to pay KRW 1,600,000,000 out of the above remuneration until April 30, 2008, and issued a promissory note with the face value of KRW 1,60,600,000 to the Plaintiff.

E. On June 25, 2009, the Seoul High Court concluded a contract for the construction of the building of this case between the initial owner of the building site of this case and the person to whom the right to share in the building site was transferred, and the defendant to whom the right to share in the building site of this case was located. ① On June 25, 2009, when the owner of the building of this case entered into the said contract with cell General Construction Co., Ltd. and the defendant, the Seoul High Court decided that, upon completion of the inspection of completion of the building of this case, the owner of the building of this case may claim the construction cost of this case after completion of the contract, and at the same time, the owner of the building of this case entered into the contract with Ecell General Construction Co., Ltd. and the defendant to pay the price and settle the price of this case without delay at the time of termination of the contract. ② At the time, the owner of the building of this case entered into the contract with Ecell General Construction Co., Ltd. to purchase the specific part of the building of this case to secure investment money.

2. Determination as to the cause of action

According to the above facts, the defendant received a delivery of the building of the building of the building of the building of the building of the building of the building of the case of this case, which was suspended from construction work by cell integrated construction company, and carried out construction at his own effort and cost, and constructed the building of this case to the extent that it can be seen as an independent building in light of social norms in its structure and form around July 28, 2003, and acquired the ownership of the building of the case of this case. The plaintiff who was awarded a contract from the defendant for the construction of the building of the building of the case of this case may request the defendant to implement the registration procedure for establishing the mortgage of the building of this case in order to secure the remuneration claim of KRW 1

3. Judgment on the defendant's defense

A. The defendant defense that the plaintiff's right to claim the registration of creation of the above mortgage has expired by prescription.

Article 163 subparag. 3 of the Civil Act provides that the period of extinctive prescription shall expire if a contractor does not exercise his/her claim on the construction work for three years. The claim on the construction work referred to in this context includes not only the contracted remuneration claim on the construction work, but also the claims incidental to the construction work (see, e.g., Supreme Court Decisions 86Meu2549, Jun. 23, 1987; 2008Da41451, Nov. 12, 2009). Therefore, the claim on the establishment registration of a mortgage to secure the remuneration claim on the real estate contractor pursuant to Article 66 of the Civil Act also constitutes a claim on the construction work of the contractor as stated in Article 163 subparag. 3 of the Civil Act, and the period of extinctive prescription shall be three years.

On the other hand, Article 166(1) of the Civil Act provides that the extinctive prescription shall run from the time when a right can be exercised. Here, the time when a right can be exercised refers to a case where there is no disability as prescribed by the law, such as non-performance of the conditions of a right under a condition precedent, or non-performance of the condition of a right under a condition precedent. Even if a right holder was unable to exercise his/her right due to de facto disability, such as a lack of personal circumstances or legal knowledge, the existence of a right, or the absence of a debtor, the extinctive prescription runs (see, e.g., Supreme Court Decisions 80Da2626, Jan. 19, 1982; 2009Da92784, Jul.

According to the facts acknowledged earlier, the Plaintiff’s remuneration claim against the Defendant occurred when the Plaintiff and the Defendant entered into a contract for the construction of the aggregate of the instant building on April 2003, and around July 28, 2003, the instant building was completed as an independent building in light of social norms and acquired the Defendant’s ownership, and thus, the Plaintiff could have exercised the right to claim the registration of establishment of a mortgage against the Defendant from July 28, 2003. It is evident in the record that the Plaintiff’s claim for the registration of establishment of a mortgage against the Defendant was filed on March 26, 2013, which was three years after the instant lawsuit was filed. Therefore, the Plaintiff’s claim for the registration of establishment of a mortgage against the Defendant had already been completed and expired before the instant lawsuit was filed. The Defendant’s defense has merit.

B. 1) As to this, the Plaintiff asserts that, as long as the construction remuneration claim against the Defendant exists, the right to claim the establishment of a mortgage to secure it does not go against extinctive prescription. However, Article 66 of the Civil Act provides that the contractor of a real estate construction project may claim the establishment of a mortgage for the purpose of securing the remuneration claim. According to the language and text, the right to claim the establishment of a mortgage under the above provision shall be construed as a claim independent from the remuneration claim, and even if one claim has the character to secure other claims, as long as both are separate independent claims, the extinctive prescription period runs independently (in the case of a bill and note obligation to secure a principal obligation or a cause obligation, the extinctive prescription period may expire independently only during the existence of a principal obligation or a cause obligation). Therefore, the Plaintiff’s above assertion is without merit.

2) Next, on August 25, 201, the Plaintiff asserts that the extinctive prescription of the right to claim for the registration of establishment of a mortgage against the Defendant was run from the time the Supreme Court rendered a judgment that the owner who acquired the instant building was the Defendant. In other words, ① the construction permit of the instant building was applied in the name of the owner of the building site, and the construction contract was concluded in a fixed manner with the owner of the building site was succeeded to the status of the said company. The Defendant succeeded to the status of the said company and became the contractor. Since the Plaintiff was aware of the land owner as the owner of the instant building due to the lack of knowledge of the above internal circumstances, it was impossible to objectively know the occurrence of the right to claim for the registration of establishment of a mortgage against the Defendant before the said judgment was rendered, and ② the registration of ownership was completed in the name of the owner of the building site, and thus, it was objectively impossible for the Plaintiff to exercise the right to claim the registration of establishment of a mortgage against the Defendant until the cancellation of the registration of

However, the ownership of a building completed by the contractor at his own effort and expense belongs to the contractor unless otherwise stipulated by a special agreement between the contractor and the contractor (see Supreme Court Decisions 80Da177, Nov. 27, 1984; 89Meu1401, Feb. 13, 1990, etc.). As seen above, the Plaintiff knew that the Plaintiff was the contractor of the building of this case since the Plaintiff entered into a subcontract again with the Defendant after the Defendant was transferred the new construction of the building of this case, and the Plaintiff was well aware that the Plaintiff was the contractor of the building of this case. Thus, it cannot be deemed that the Plaintiff could not objectively know the occurrence of the claim for the registration of establishment of a mortgage against the Defendant merely because the construction permit of this case was applied in the name of the owner of the building site, or the Defendant was succeeded to the contractor status from Ecell Integrated Construction Co., Ltd.

3) Lastly, the Plaintiff asserts that the completion of the extinctive prescription against the Plaintiff, who recovered the Defendant’s right to the instant building, is not permissible against the principle of good faith, in the event that the Defendant did not yet pay the Plaintiff the construction cost of KRW 1,600,000,000 to the Plaintiff. However, as seen earlier, the Defendant cannot be said to have recovered the Defendant’s right to the instant building since the Plaintiff acquired the ownership of the instant building by the construction of the instant building with its own cost and effort after being awarded a contract for the construction of the instant building, and the Defendant did not yet pay the Plaintiff the remuneration under the contract. The Plaintiff’s assertion that the extinctive prescription of the right to claim the registration of creation of a mortgage is not against the principle of good faith

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges domini (Presiding Judge) Kim Croop