2013Da85943 Compensation, etc.

Hyundai Industrial Development Co., Ltd.

A

Seoul High Court Decision 2012Na67568 Decided October 11, 2013

July 29, 2016

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

1. As to the ground of appeal No. 2, the Plaintiff asserted that the Defendant deprived of possession of the apartment of this case, which is the lien holder, and that the Defendant, pursuant to Article 204(1) of the Civil Act, sought to deliver the apartment of this case to the Plaintiff at the time of the termination of possession of B, which is the direct occupant, and the Defendant asserted that the primary claim for extradition of this case is unlawful.

The court below rejected the Defendant’s prior defense on the ground that the Defendant’s primary claim for delivery was based on the premise that the Defendant’s direct possession of the apartment of this case was specified at the time of restoring possession, and that it was necessary to claim in advance.

However, it cannot be readily concluded that the Defendant recovered the direct possession of the apartment of this case at the time of the termination of possession B, and thus, the lawsuit of future performance, such as the claim for the main delivery of this case, is not allowed. Nevertheless, the lower court’s rejection of the Defendant’s defense on the main claim for the main delivery of this case, which erred by misapprehending the legal doctrine on

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

The presiding judge shall stand for the Justice Park Jae-hee.

Justices Park Young-young

Justices Kim In-bok, Counsel for defendant

Justices Kim Jong-il