Plaintiff (Attorney Kim Byung-jin, Counsel for the plaintiff-appellant)

The mobilization industry (Attorney Lee Won-hoon, Counsel for defendant-appellee)

March 23, 2018

Gwangju District Court Decision 2015Kadan8432 Decided October 19, 2016

1. The plaintiff's appeal and the claims added by this court are dismissed, respectively.

2. The appeal costs and the costs of the lawsuit additionally incurred by this court shall be borne by the plaintiff.

1. Purport of claim

Main: The Defendant shall deliver the goods listed in the separate sheet to the Plaintiff, and pay to the Plaintiff the amount calculated at the rate of 20% per annum from September 30, 2015 to September 30, 2015, and 15% per annum from October 1, 2015 to the date of full payment, and pay the amount of money calculated at the rate of 10 million won per month from June 6, 2015 to the date of the completion of delivery of the goods listed in the separate sheet.

Preliminary: The Defendant shall pay to the Plaintiff 10 million won with 15% interest per annum from the day following the delivery of the copy of the instant claim and the written application for modification of the cause of the claim to the day of complete payment.

[Plaintiff claimed the rent and delay damages for the items listed in the original separate sheet, but this court reduced the claim for the above delay damages, and added the claim for the delivery of the items listed in the separate sheet and the claim for damages for the conjunctive tort around it.]

2. Purport of appeal

The judgment of the first instance court shall be revoked. The above purport of the claim, ②, ③ the same judgment shall be sought.

1. Basic facts

A. In around 2009, ○○○△△△ Leisure Development Co., Ltd. (hereinafter “instant building”) newly constructed a third underground floor and a ○○△△△△△△△△△△△△△ hotel on the land outside the city of 2009, and completed the registration of initial ownership on November 23, 2010. Since May 201, 201, ○○○ Hotel operated a hotel business in the instant building using the articles listed in the separate sheet (hereinafter “instant fixtures”).

B. On June 2012, the first mortgagee of the instant building applied for a voluntary auction from Gwangju District Court Decision 2012Tacheon-gu, Gwangju District Court Decision 201519, Jun. 26, 2012. On February 12, 2014, the Defendant paid the sale price at the auction procedure and acquired the ownership of the instant building.

C. After the instant equipment was seized by the creditors of the ○○ hotel, Nonparty 1 was the purchaser of the instant corporeal movables auction that took place in Gwangju District Court’s 2012 main text 209, etc. on August 29, 2012, at KRW 130 million for the proceeds of sale on August 29, 2012.

After that, Nonparty 1 paid the purchase price on February 12, 2014 and acquired the ownership of the instant fixtures, on April 26, 2013, Nonparty 2 transferred the ownership to Nonparty 3, Nonparty 4 on October 1, 2013, and Nonparty 3, Nonparty 3, and Nonparty 4 on March 25, 2014, respectively, to the Credit Council of ○○○○○○△△△△△△△△△△ (hereinafter “Credit Council”). Since the instant fixtures were not taken out from the outside after the acquisition of ownership, they were used for the hotel business in the instant building, each of the instant fixtures transferred the right to claim for delivery of the instant fixtures.

D. Meanwhile, on March 11, 2014, the Defendant filed an order for the transfer of the instant building with the claim council, etc., Gwangju District Court 2014Ma237, which was issued on March 12, 2014, and received a decision of acceptance on March 12, 2014 by compulsory execution based on the above delivery order. On March 26, 2014, the execution officer of the Gwangju District Court ordered the Defendant to keep the instant equipment located in the instant building while executing the above delivery execution. Accordingly, the Defendant kept the instant equipment on the instant building.

E. On March 25, 2014, the Credit Council transferred the ownership of the instant equipment by transferring the right to claim delivery of the instant equipment to the Plaintiff.

[Ground for Recognition: Facts without dispute, entries in Gap's 1 through 6, 19 through 23 (including paper numbers; hereinafter the same shall apply), entry in Eul's 5, 9, 11, 12, and 13, and the purport of the whole pleadings]

2. The assertion and judgment

A. Request for the delivery of the instant equipment (the primary claim added by the court)

(1) Determination as to the cause of claim

According to the above facts, the defendant has a duty to deliver the instant equipment to the plaintiff as its owner, unless there is a special reason not to do so.

Therefore, the defendant asserts that the plaintiff is not the owner of the equipment of this case since the contract for the transfer of the equipment of this case entered into with the creditor group is false, according to the records of No. 17, the plaintiff asserts that the plaintiff is not the owner of the equipment of this case. Thus, in the appellate court (Seoul High Court 2016Na256) of the damages lawsuit brought by the defendant against the non-party 5 et al. who is the joint representative of the creditor group, the creditor group and the non-party 5 et al. (Seoul High Court 2016Na256) of the creditor group and the non-party 5 et al. of this case, it seems to have some circumstances to suspect that the above transfer contract of this case was false, such as the agreement to adjust the contents of giving up the ownership of the equipment of this case on January 23, 2017. However, the above show that the plaintiff prepared a written contract for the transfer of the equipment of this case with the creditor group on March 25, 2014.

In addition, the defendant asserts that among the equipment of this case, it is not currently possessed by the defendant. However, the above macroscopic evidence, Gap evidence No. 26, and the whole purport of the oral argument as a result of on-site inspection by the court. ① On March 26, 2014, the defendant would faithfully keep and manage the equipment of this case with the care of a good manager. The defendant would be liable for all civil and criminal responsibilities upon the occurrence of loss, such as theft and damage due to care due to care. ② The defendant did not submit any materials to acknowledge that there is items or lost among the equipment of this case, but it would not be easy for the defendant to verify the existence of the article of this case as to whether the article of this case was destroyed or destroyed by the No. 2 of this case and the article of this case 8 of this case. The defendant did not have any reason to acknowledge that the article of this case 6 of this case had been delivered to the 30th floor of Gwangju District Court to the 20th floor of this case.

(2) Determination as to the right of retention defense

The defendant asserts that there is a lien to possess the instant equipment until he is paid the storage fees, since there was approximately KRW 800 million storage fees while keeping the instant equipment.

The movable property, which is not the object of the execution of delivery of substitute real estate, shall be delivered to the debtor, his/her agent, etc. (Article 258(3) and (4) of the Civil Execution Act). In cases where there is no debtor, his/her agent, etc. to receive such delivery, the execution officer shall keep it at the debtor’s expense (Article 258(5)). In this case, the execution officer may, with the consent of the creditor, have the creditor keep it at the creditor’s expense. In this case, the rights and obligations of the creditor with respect to the custody are determined by the judicial contract, such as the deposit contract concluded with the execution officer in principle (see Supreme Court Decision 2007Da1722, Sept. 25, 2008), and the creditor may exercise

In the instant case, comprehensively taking account of the foregoing macroscopic evidence and the overall purport of the argument in the appraisal by the appraiser YU, the Defendant: (a) was occupied by the equipment of this case under the order of the execution officer during the execution procedure of the delivery procedure of the building of this case, which was conducted on March 26, 2014; (b) the Defendant prepared and delivered a custody certificate to the execution officer; and (c) the custody certificate stated that the storage place is “each floor of the building of this case,” and that “the Defendant shall faithfully keep and manage the equipment of this case with the care of a good manager, and claim for storage fees for the article in this case; (c) the Defendant kept most of the equipment of this case from the 8th floor of the building of this case as of March 26, 2014; and (d) the Defendant did not use the equipment of this case from March 26, 2014 to December 31, 2017.

(3) Sub-decisions

Therefore, the Plaintiff’s request for delivery of the instant equipment is groundless.

B. A claim for restitution of unjust enrichment (principal claim)

The Plaintiff asserts that, since the Defendant occupied and used the instant equipment owned by the Plaintiff without permission from March 26, 2014, the Defendant should return to the Plaintiff the instant equipment, calculated by the ratio of KRW 140 million to KRW 140,000,000 for 14 months from March 26, 2014 to June 5, 2015, which is the date of receipt of the instant complaint, and KRW 140,000,000,000 per month from June 6, 2015 to June 6, 2015.

However, the evidence presented by the Plaintiff alone is difficult to recognize the fact that the Defendant uses and takes profits from the instant equipment, and there is no other evidence to acknowledge it. Therefore, the Plaintiff’s claim for this portion is without merit.

C. Claim for damages (the preliminary claim added by this court)

Preliminaryly, the Plaintiff asserts that the Defendant should pay KRW 140 million, which is a part of the damages for the tort, on the ground that the Defendant suffered a loss equivalent to KRW 280 million, which is the value of the instant fixtures, due to the Defendant’s unlawful act of occupying the instant fixtures without permission and refusing to return them.

As seen earlier, the Defendant occupied the instant equipment by the order of an execution officer during the execution procedure of delivery of real estate of the building of this case, which was initiated on March 26, 2014, and the right to keep the instant equipment up to the time of receiving storage fees for the instant equipment. As such, it is difficult to view that the Defendant’s possession and refusal to return the instant equipment is unlawful, and therefore, the Plaintiff’s claim for this portion of the equipment on a different premise is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal and the claims added to this court are dismissed in entirety.

(attached Form omitted)

Judges Kim Sung (Presiding Judge)