2012Na21575 Delivery of Automobile

Daegu District Court Decision 2012Gadan9796 Decided September 21, 2012

June 4, 2013

June 20, 2013

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall deliver the vehicle indicated in the attached Form to the plaintiff.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Determination as to the cause of claim

The plaintiff completed the registration of ownership of the automobile as stated in the attached Form (hereinafter referred to as the "automobile of this case"), and the fact that the defendant currently occupies it does not conflict between the parties, and the defendant is obligated to deliver the automobile of this case to the plaintiff, barring any special circumstances.

2. Judgment on the defendant's defense

A. The defendant's assertion

The Defendant, while lending KRW 5 million to a person in bad name, was provided as security for the instant automobile, has a legitimate right to possess the instant automobile on the basis of the pledge or lien.

B. Determination

1) Facts of recognition

A) On April 20, 2009, the Plaintiff, while delivering the instant vehicle to the roadside, issued documents such as the letter of credit transfer, delegation letter of automobile transfer, automobile mortgage contract, power of attorney, automobile transfer certificate, vehicle transfer certificate, vehicle transfer permit, etc., which were not indicated by the other party, along with a certificate of personal seal impression and resident registration certificate issued on the same day. On the same day, five million won was remitted to the Plaintiff’s account.

B) Since then, the instant motor vehicle is delivered in sequence with each of the above documents to the bearers, and the Defendant finally occupies the instant motor vehicle for the purpose of securing loans.

[Based on the recognition] A. 2, B’s evidence Nos. 1 through 10 (Evidence Nos. 1, 2, 3, 6, and 10) (Evidence Nos. 1, 2, 3, and 6 through 10) are presumed to be the authenticity of the entire document because there is no dispute between the parties as to the fact that the affixed seal on the Plaintiff’s name is based on the Plaintiff’s seal. The Plaintiff has issued the Plaintiff’s seal impression, certificate of personal seal impression, etc. in relation to the SK’s business operated by the Plaintiff as the representative director at the time of delivering the instant vehicle to the e-mail for the sale of the instant vehicle. However, although the e-mail asserted that the above documents were forged by using the above documents, it is insufficient to acknowledge it by itself, and there is no other evidence to acknowledge it, the above defense is not accepted). The purport of

2) Determination as to the defendant's right to possess

A) Determination on the assertion of pledge right

An automobile can only be the object of mortgage pursuant to Article 7 of the former Automobile Mortgage Act (amended by Act No. 9525, Mar. 25, 2009) and Article 9 of the Act on Mortgage on Specific Movables including Automobiles, and cannot be the object of pledge, which is a real right to secure possession for the security of claims.

The purpose of this provision is to prevent economic and economic losses from becoming the president of means of living in the event of establishing a pledge rather than the pledge that takes possession as the method of public announcement as well as the acquisition, loss, and transfer of the right to the motor vehicle upon registration. Therefore, an agreement between the defendant and the person in poor name who assures the obligation of borrowed money by having the defendant who is the creditor occupy the motor vehicle in this case, shall be null and void, and as long as the defendant did not complete the ownership transfer registration on the motor vehicle in this case, the right to transfer a security for the motor vehicle in this case shall not be deemed to have been established, and therefore, the defendant has a legitimate right to possess the motor vehicle in this case on the basis of the pledge. The defendant'

B) Determination as to the assertion of lien

A person who possesses another person’s property has the right to retain the property until the claim arising in relation to the property is repaid (Article 320(1) of the Civil Act). Here, “claim arising in relation to the property” includes not only cases where a claim arising from the property itself is generated, but also cases where a claim arises from the same legal relationship or fact as the right to claim the return of the property, unless it is contrary to the principle of fairness, which is the original purpose of the right of retention, which is the right of retention, (see, e.g., Supreme Court Decision 2005Da16942, Sept. 7, 2007). However, it is evident that the Defendant’s claim for the rent against the defective person’s name and the right to claim the delivery of a motor vehicle from the Defendant falls under a case where another legal relationship, which is the agreement to lend and the right to claim the delivery of a motor vehicle from a person who has not

3. Conclusion

If so, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, the whole judge

Judges Lee Sung-sung

Judges Jeon Jae-hwan