[건물명도등][공2003.6.1.(179),1195]
In case where a land lease contract is terminated due to the lessee's default, whether to recognize the right to claim the ground property (negative)
In case of land lease the object of which is to own a structure, etc., if the contract is terminated due to the lessee's default, the lessee shall not have the right to purchase against the lessor pursuant to Articles 283 and 643 of the Civil Act.
Articles 283 and 643 of the Civil Act
Supreme Court Decision 90Da19695 Decided April 23, 1991 (Gong1991, 1464) Supreme Court Decision 93Da10781 Decided June 29, 1993 (Gong1993Ha, 2137), Supreme Court Decision 93Da44104 Decided February 22, 1994 (Gong1994, 1076), Supreme Court Decision 95Da29345 Decided February 27, 1996 (Gong196, 108), Supreme Court Decision 95Da29345 Decided April 29, 197 (Gong196, 108)
[Judgment of the court below]
Defendant
Jeonju District Court Decision 200Na6486 delivered on December 26, 2002
The judgment of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division.
1. On April 1, 1998, the court below decided that the land of this case is KRW 20 million, monthly rent of KRW 27 million, and from April 1, 1998 to March 31, 2002. The defendant, upon the expiration of the period when he constructed and used the land on the land of this case, delivers the land of this case to the plaintiff by restoring it to the original state upon the expiration of the period, and if the land is not restored to the original state, it shall be reverted to the building of this case and the facility to be restored to the original state and deducted the expenses from the deposit. The defendant shall not transfer the right to the land of this case and the building to be newly constructed on the land of this case to a third party without the plaintiff's consent, and the defendant shall not immediately deliver the land of this case to the defendant even during the lease period, and the defendant shall waive the lease contract of this case to the plaintiff and the building of this case to the third party without the plaintiff's consent, and the court of first instance 2, 319 and 41.
2. However, the lower court’s aforementioned determination is difficult to accept for the following reasons.
With respect to the lease of land for the purpose of owning a structure, etc., if the contract is terminated due to the lessee's default, the lessee shall not have the right to demand purchase from the lessor pursuant to Articles 643 and 283 of the Civil Act (see, e.g., Supreme Court Decisions 72Da2013, Dec. 26, 197; 96Da54249, 54256, Apr. 8, 197).
In this case, the land lease of this case is for the purpose of owning the building of this case. Since the defendant constructed the building of this case on the land of this case to sublet it to a third party without permission, and the contract of this case was terminated by the plaintiff's declaration of intent to cancel the contract on the ground of the defendant's non-performance of obligation, the defendant cannot exercise his right to claim the ground property purchase against the plaintiff, and therefore the contract to transfer the building of this case to the plaintiff is effective because the defendant did not violate Article 643 of the Civil Code, barring any special circumstance. Thus, the defendant is obligated to order the plaintiff to issue the building of this case, and pay rent or unjust enrichment from April 1, 199 to its name.
Nevertheless, the judgment of the court below which judged otherwise is erroneous in the misapprehension and application of Article 643 of the Civil Code, thereby affecting the conclusion of the judgment.
3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court.
Justices Zwon (Presiding Justice)