[1] The case holding that the Housing Improvement Development Cooperative has the right to attract apartmentss until it is reimbursed with the claim, etc. related to the newly built and sold apartment by the implementation of the redevelopment project with the members

[2] The case holding that in case where a person who acquired an apartment under the right of retention in a compulsory auction procedure requests a court to issue an order to deliver the apartment to the apartment owner, and occupies the apartment after delivery, the lien holder is not allowed to claim the amount equivalent to the amount of the unclaimed bond due to the damages for the loss of the right of retention

[1] The case holding that in a case where the Housing Improvement Development Cooperative established under the former Urban Development Act (repealed by Article 2 of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Act No. 6852 of December 30, 2002) has a relation with the apartment and related claims, etc., which were newly built and sold by the Housing Improvement Development Cooperative due to the implementation of the redevelopment project against its members, and the Cooperative refuses to deliver the apartment to secure the claims, etc., keeps the keys by correcting the entrance, and at the entrance of the apartment, posted a warning that it is exercising the right of retention on the entrance of the apartment, it is reasonable to view that the Cooperative acquired the possession by de facto controlling the apartment by social norms

[2] The case holding that in case where a person who acquired an apartment under the right of retention in a compulsory auction procedure requests a court to issue an order to deliver the apartment to the apartment owner, and occupies the apartment after delivery, the lien holder is not allowed to claim the amount equivalent to the amount of the unclaimed bond due to damages for the loss of the right of retention

[1] Article 320 of the Civil Act / [2] Articles 192(2), 204(1), 320, and 328 of the Civil Act; Article 91 of the Civil Execution Act

Plaintiff Housing Improvement Development Cooperatives (Law Firm Mancheon-ro, Attorneys Yu-chul et al., Counsel for plaintiff-appellant)

Defendant 1 and two others (Law Firm Han & Lee, Attorneys Lee Lee Jae-soo, Counsel for the defendant-appellant)

August 21, 2009

1. The plaintiff's claims against the defendants are all dismissed.

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

The Defendants jointly and severally pay to the Plaintiff the amount of KRW 359,168,496 as well as 5% per annum from March 13, 2009 to the date of this judgment, and 20% per annum from the next day to the date of full payment.

1. Basic facts

A. In order to implement the redevelopment project on the ground of Dobong-dong, Seoul Special Metropolitan City (hereinafter parcel number 1 omitted) and 644 lots, the Plaintiff was established pursuant to the former Urban Redevelopment Act (amended by Act No. 6852 of Dec. 30, 2002 and enforced on July 1, 2003; hereinafter “Act”) and is currently under liquidation procedures as a housing redevelopment project redevelopment project partnership established under the former Urban Redevelopment Act (amended by Act No. 6852 of Jul. 1, 2003; hereinafter “Act”).

B. On February 3, 1998, the Plaintiff selected Nonparty 1 Company and Nonparty 2 Company as contractor, and newly built ○○ apartment. On February 3, 1998, the Plaintiff, a member of the Plaintiff’s association, sold the above ○○ apartment 128 Dong 1302 (hereinafter “instant apartment”) to KRW 87,438,942 as follows.

(1) The deceased non-party 3 pays 8,743,00 won of the intermediate payment of 17,486,000 won on February 3, 1998, the intermediate payment of 8,743,000 won on July 3, 1998, and the intermediate payment of 8,743,000 won on December 3, 1998, and the intermediate payment of 8,743,000 won on May 3, 3, 1999, and the intermediate payment of 8,743,743,000 won on October 34, 1999, and the intermediate payment of 8,743,000 won on March 35, 200, and the intermediate payment of 8,743,000 won on August 6, 200, 740, 174,94,294.

(2) The deceased Nonparty 3 shall deposit the money collectible by the association’s articles of incorporation into an account jointly opened by the association with the Plaintiff and the City Corporation. If the payment is delayed on the designated date, it shall pay the money collectible plus the overdue interest rate of the bank.

(3) The deceased non-party 3 is issued a certificate of occupancy in the name of the plaintiff and the contractor after full payment of the money collectible and submitting all the documents requested by the plaintiff.

C. With respect to the sale of the apartment in this case, the deceased non-party 3 paid the above amount on behalf of the deceased non-party 3, as ① the sum of KRW 48,801,942 after the second part of the apartment in this case’s money, ② the cost of maintenance, the cost of maintenance, the cost of equal distribution, and taxes such as land, the registration tax of buildings, the education tax, etc., and the relocation expenses, which are to be paid to the contractor of the apartment in this case or the competent Gu office, and the Plaintiff did not pay the above amount in total, KRW 167,39,846. Meanwhile, the damages for delay up to December 18, 2003 for each of the above amounts are KRW 60,585,405.

D. Upon completion of the above ○ apartment on September 20, 2003, the Plaintiff completed the registration of preservation of ownership in the name of the deceased Nonparty 3 on the apartment of this case, and refused to deliver the apartment of this case in order to secure the principal and interest claim, such as the money collectible against the deceased Nonparty 3, and corrected the entrance thereof and stored the key.

E. On February 11, 1999, the deceased non-party 3 died, and all the remaining inheritors except the deceased non-party 4 were accepted by filing an application for renunciation of inheritance. Accordingly, the deceased non-party 4 became the only heir of the deceased non-party 3. The deceased non-party 4 died on December 15, 2002, the deceased non-party 5 and non-party 6, the parent of the deceased non-party 4, were co-inheritors, and the Suwon District Court's Ansan Branch Branch 2006Mo167, and the qualified acceptance report was accepted on March 2, 2006.

F. The plaintiff filed a lawsuit against the deceased non-party 5 and non-party 6 as Seoul Central District Court 2006Gahap68518 against the deceased non-party 5 and non-party 6. On December 12, 2006, the decision of recommending reconciliation was confirmed as follows: "within the scope of inherited property from the deceased non-party 5 and non-party 6, the plaintiff shall be paid 5% per annum from December 19, 2003 to August 22, 2006, and 20% per annum from the next day to the date of full payment."

G. According to the above settlement recommendation decision, the plaintiff applied for a compulsory auction against the apartment of this case to the Seoul Central District Court (No. 2008, No. 9755), and the court rendered a decision to commence compulsory auction on April 4, 2008, and the registration of the decision to commence compulsory auction was completed on the same day.

아. 원고는 2008. 4. 18. 이 법원에 위 화해권고결정으로 확정된 징수금 등 채권액 276,738,328원 및 이에 대한 2008. 4. 18.까지의 지연손해금의 합계 417,040,869원, 아파트관리비 10,065,580원, 유리샷시비용 3,600,300원, 대위등기비용 8,101,300원의 합계 438,808,049원(=417,040,869원 + 10,065,580원 + 3,600,300원 + 8,101,300원)을 피담보채권으로 하여 이 사건 아파트에 관하여 유치권 신고를 하였고, 이 사건 아파트의 출입문에 이러한 사실을 알리는 공고문을 게시하였다.

I. The apartment of this case is assessed as KRW 620 million, and the above procedure for compulsory auction was conducted, but the third auction was conducted. On February 19, 2009, the Defendants reported the purchase at the highest price of KRW 380,001,00 and received a decision from the court on February 26, 2009.

(j) On March 10, 2009, the Defendants filed an order for delivery with Nonparty 5 and Nonparty 6, the owner of the instant apartment on March 11, 2009, Seoul Central District Court 2009tagi650, and filed an application for delivery order with the court on March 11, 2009. The above delivery order was served on Nonparty 5 and Nonparty 6 on March 13, 2009, and acquired possession of the instant apartment upon delivery from the execution officer on March 19, 209 pursuant to the above delivery order.

[Ground for Recognition: Facts without dispute, entry of Gap evidence 1-1 through 7-3, evidence of 10 through 15, evidence of 18-1, 27, 20, evidence of 22-1, 2, and Eul evidence of 22-1, 2, and the purport of whole pleadings]

2. The plaintiff's assertion

The Defendants are jointly and severally liable to compensate the Plaintiff for damages arising from the extinguishment of the lien on the apartment of this case pursuant to Article 204(1) of the Civil Act or Article 760 of the Civil Act, which is the amount of the secured claim of the lien, calculated by deducting KRW 79,639,504, the amount of the secured claim of the lien from KRW 438,808,049, which was paid by the Plaintiff to the Plaintiff during the said compulsory auction procedure, from KRW 359,168,496 ( KRW 438,808,049, KRW 79,639,639,09, KRW 79,639,639,50,504, KRW 2).

3. Determination

A. Whether a lien is established

(1) Whether the relation between lien and the secured claim is recognized

살피건대, 갑 제1호증의 1, 2, 제5호증의 각 기재에 변론 전체의 취지를 종합하면, 위 화해권고결정으로 확정된 징수금 등 채권액 276,738,328원 및 이에 대한 2008. 4. 18.까지의 지연손해금이 합계 417,040,869원인 사실, 원고가 2008. 3. 31. 이 사건 아파트에 관한 2001. 8.분부터 2008. 2.분까지의 관리비 10,065,580원을 납부하였고, 2008. 1. 10. 이 사건 아파트에 관한 유리샷시비용으로 3,600,300원을 지출한 사실, 원고가 이 사건 아파트에 관한 대위등기비용으로 8,101,300원을 지출한 사실을 인정할 수 있다.

또한, 갑 제1호증의 1, 2, 제18호증의 2 내지 제19호증의 4의 각 기재에 변론 전체의 취지를 종합하면, 원고의 조합정관에서 조합은 사업에 필요한 경비를 충당하기 위하여 조합원으로부터 경비를 부과·징수할 수 있고, 조합원은 부과금 및 청산금을 납부할 의무가 있으며, 조합은 분양기준가액과 분양받은 대지 또는 건축시설과 사이에 차액이 있을 때에는 그 차액을 조합원으로부터 징수할 수 있다고 규정하고 있는 사실(제8조, 제32조, 제64조), 원고와 시공사, 망 소외 3 사이에 체결된 이 사건 아파트의 분양계약에 따라 조합원은 징수금을 완납한 후에야 이 사건 아파트에 입주할 수 있는 사실, 망 소외 3이 원고와 관할구청 등에 납부하여야 할 시유지 계약금 및 불하대금, 시유지 균등배분금, 이주비, 세금 등은 조합의 사업에 필요한 경비의 성격을 지니고 있으며, 조합원은 이러한 경비를 지급한 후에야 이 사건 아파트에 입주할 수 있는 사실 등을 인정할 수 있는바, 위 인정사실에 의하면 위 화해권고결정으로 확정된 이 사건 아파트의 징수금 중 2차 중도금 이후 분 합계 48,801,942원과 ② 이 사건 아파트의 시공사 또는 관할구청에 납부하여야 할 시유지 계약금 및 불하대금, 시유지 균등배분금 및 토지, 건물 등록세, 교육세 등의 세금과 이주비 합계 167,399,846원 및 위 각 금원에 대한 지연손해금채권은 이 사건 아파트에 관한 망 소외 3의 인도청구권과 동일한 법률관계로부터 발생한 것으로서, 또한 이 사건 아파트에 관한 관리비, 유리샷시비용, 대위등기비용은 목적물 자체로부터 발생한 비용으로서, 위 징수금 등에 대한 채권 및 위 각 비용에 대한 상환청구권과 이 사건 아파트 사이에는 견련관계가 있다.

(2) Possession of the Defendants

As seen earlier, if the plaintiff corrected the entrance of the apartment of this case from September 20, 203 to keep the key thereof in order to secure the claim, etc. to be collected with respect to the apartment of this case, and posted a warning on April 28, 2008 that the plaintiff exercised the right of retention on the entrance of the apartment of this case, it is reasonable to deem that the plaintiff acquired the possession of the apartment of this case by de facto controlling the apartment of this case under the social concept, and therefore, the plaintiff has the right to attract the apartment of this case until he received the payment of the above claim, etc. from the deceased non-party 3.

On the other hand, the defendants asserted that since the plaintiff was registered to enter a decision on compulsory commencement of auction on the apartment of this case and thereafter possessed the apartment of this case after the seizure became effective, it would be contrary to the prohibition of disposition of seizure and thus it cannot be set up against the defendants, the purchaser of the apartment of this case, the right of retention. However, as seen earlier, the plaintiff occupied the apartment of this case in the way that the entrance was corrected from September 20, 2003 and the key was kept. Thus, the defendants' above assertion is without merit.

(3) Conclusion

따라서 원고는 위 화해권고결정으로 확정된 징수금 등 채권액 276,738,328원 및 이에 대한 2008. 4. 18.까지의 지연손해금의 합계 417,040,869원, 아파트관리비 10,065,580원, 유리샷시비용 3,600,300원, 대위등기비용 8,101,300원의 합계 438,808,049원(= 417,040,869원 + 10,065,580원 + 3,600,300원 + 8,101,300원)을 상환받을 때까지 이 사건 아파트를 유치할 권리가 있다.

B. Whether the Defendants were intentional or negligent

In full view of the following circumstances, the aforementioned facts and the statements in Gap evidence Nos. 6, 8, 10, 20, and Eul evidence No. 2, which can be recognized by comprehensively considering the overall purport of the pleadings (in particular, in light of the circumstance in which the defendants sold the apartment of this case and the method of acquiring possession), it is reasonable to view that the defendants acquired possession of the apartment of this case with knowledge that the plaintiff had exercised a lien on the apartment of this case.

(1) On April 28, 2008, the Plaintiff reported the exercise of lien to an auction court, and posted a warning on the entrance of the apartment in this case.

(2) On February 24, 2009, the Plaintiff submitted a written statement in lieu of the attendance of the date for granting the successful bid to the court of auction to the effect that the Defendants may have a greater burden on the acceptance of the lien.

(3) On February 27, 2009, the Defendants perused and copied the auction records and confirmed the Plaintiff’s report on the lien.

(4) On February 19, 2009, the Defendants decided to be the highest bidder at KRW 380,000,000, which is less than KRW 620,000,000,000, which is the first appraised value, due to the Plaintiff’s loss of the right of retention, compared to the amount of damages caused by the Plaintiff’s loss of the right of retention.

(5) The Defendants filed an order of delivery with Nonparty 5 and Nonparty 6, the owner of the instant apartment without inquiring the Plaintiff as the lien holder, and executed it through an execution officer upon receiving the order of delivery from the court.

(c) Liability for damages;

However, the Plaintiff is seeking the remainder of KRW 359,168,496 ( KRW 438,808,049 - 79,639,50,504, which is the amount of the secured claim of the right of retention, deducted from KRW 438,808,049, the amount of the secured claim of the right of retention in the above compulsory auction procedure.

On the other hand, the plaintiff may claim damages against the defendants against the deprivation of possession under Article 204(1) of the Civil Act. However, in relation to the scope of damages, when the possessor collects possession of an object by exercising the right to claim the return of possession of the object, the possessor shall continue to exist without extinguishment (Article 192(2) of the Civil Act). Article 91 of the Civil Execution Act provides that the buyer shall be liable for the repayment of the claim secured by the lien to the lien holder. Here, the meaning of the "performance liability" is that the buyer succeeds to the real estate burden, and does not mean that the buyer takes over his personal obligation. Thus, the lien holder can refuse the delivery of the real estate, which is the object of the lien, until the secured claim is repaid, and cannot claim the repayment of the secured claim (see Supreme Court Decision 95Da8713, Aug. 23, 1996).

However, with respect to the instant case, the Plaintiff occupied the instant apartment, while exercising the right of retention for the purpose of preserving secured claims, such as money collectible claims, and the Defendants were aware of the exercise of the Plaintiff’s right of retention and currently occupying the instant apartment, as seen earlier. As such, the Plaintiff may seek the return of the instant apartment by exercising the right to claim the return of possession property against the Defendants, and if possession is recovered, the Plaintiff’s right of retention still remains effective 3).

Therefore, apart from whether the Plaintiff may exercise the right to claim the return of the object in possession against the Defendants, the instant claim seeking the amount equivalent to the amount of the secured claim due to the loss of the right to claim the return of the object in possession, in a situation where the right to claim the return of the object in possession can be exercised, is without merit, and otherwise there is no specific assertion and proof as to the amount of damages incurred by the Plaintiff due to the temporary loss of possession in the apartment in this case, the Plaintiff’

4. Conclusion

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

Judges Kim Su-cheon (Presiding Judge) and Lee Jong-jin

Note 1) Subsequent to 75,030,942 was reduced to KRW 75,00.

Note 2) On the basis of calculation, either KRW 359,168,545 or the Plaintiff is seeking only KRW 359,168,496.

3) Therefore, in a case where a new situation was created in which the Defendants’ disposal and delivery of the instant apartment complex under their possession to a third party, completed the registration of ownership transfer, and let the third party acquire full ownership of the subject matter, thereby leaving the ownership or possession of the subject matter, and thus it is impossible to restore the ownership or possession of the subject matter, the Plaintiff may seek compensation for damages against the Defendants, who are the buyer, for the result that the Plaintiff could not recover possession of the subject matter by exercising the right to claim the return of possession of the object, resulting in the result that the Plaintiff could not recover possession of the subject matter by exercising the right to claim the return of possession against the Defendants, which

4) The amount of profit from the possession and use of an ordinary real estate is the amount equivalent to the rent of the real estate, and the amount of loss from the loss of possession of the real estate is also the amount equivalent to the rent of the real estate. However, even if the lien occupies the real estate under the lien, the lien holder shall return the amount of profit during the possession period to the owner as unjust enrichment.