부합과 양도담보권의 효력 - 대법원 2016. 4. 28. 선고 2012다19659 판결 - = Security on Movable Property by Means of Transfer and Attachment

다국어 초록 (Multilingual Abstract)

In Korean Civil Law a security on movable property by means of transfer comes under the category of “real right granted by way of security.” However, the well-established decisions made by the Korean Supreme Court shows a consistent disapproval of good faith acquisition of security by means of transfer because constititum possessorium alone can never satisfy its condition. The situation fares worse when through attachment a movable property loses its characteristic as a separate entity and becomes part of another main entity, such as a building or a ship, which is already offered as a security by means of transfer. With regards to this case, another matter comes into question; who among the pledger who put down his possession, the creditor, or the holder of a real right granted by way of security acquire ownership of the attached entity? Korean Supreme Court Decision 2016.4.28., 2012DA19659 sat in judgment on this case in favor of the pledger for reasons that material benefit should be vested in him. The person who lost his property should claim the restitution based on unjust enrichment against the pledger, not the creditor. But as the creditor also appears externally as the owner of the security, the owner of the attached entity may argue that he is the person who should restitute the loss because he is riding a wave of the enrichment. Korean Supreme Court had to consider this aspect.