Whether a person who exercises a right of retention on the basis of a contract price claim directly resides in and uses the house, which is the object of custody, constitutes the use necessary for the preservation of the object of custody (affirmative

Article 324 of the Civil Act

Supreme Court Decision 2009Da40684 Decided September 24, 2009 (Gong2009Ha, 1757)

Plaintiff

Gyeongpy Co., Ltd. (Law Firm Jeong, Attorneys Lee Jung-soo et al., Counsel for the plaintiff-appellant)

Busan District Court Decision 201Na4282 Decided November 24, 2011

The part of the lower judgment against the Defendant regarding the claim for delivery of a building shall be reversed, and that part of the case shall be remanded to the Busan District Court Panel Division. The remaining appeals shall be dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on the part requesting a building

A. According to the reasoning of the lower judgment, the lower court acknowledged the facts as indicated in its reasoning, and determined that the Defendant’s use of the building of this case, which was a newly constructed building, for a long time, through the Nonparty, who is the Defendant’s occupation assistant, for residential purposes from September 15, 2005, does not exceed the lien holder’s authority, and accepted the Plaintiff’s claim for extinguishment

B. However, the lower court’s determination is difficult to accept for the following reasons.

According to Article 324 of the Civil Act, a lien holder shall possess the thing under custody with the care of a good manager, and may not use, lend, or offer security beyond the scope necessary for the preservation of the thing under custody without the consent of the owner, and the owner may demand the extinction of the lien if the lien holder violates the above obligation. However, the person who exercises the lien based on the claim for construction cost, resides in and uses the house under custody, which is the object under custody, is an act helpful for the preservation of the house under custody, and in such a case, the extinction of the lien cannot be claimed (see Supreme Court Decision 2009Da40684 delivered on September 24, 2009).

In light of the above legal principles, even if the defendant, who exercises the right of retention based on the claim for construction price, had the non-party, who is his possession assistant, reside in the building of this case, and continued to use the claim for construction price from September 15, 2005 to the present date, it is reasonable to view it as an act assisting the preservation of the house, which is the object of custody, as an act assisting the preservation of the object of custody, and thus, it is not possible for the plaintiff to claim the extinction

Nevertheless, the judgment of the court below which accepted the plaintiff's claim for extinguishment of the right of retention on the ground that the defendant's act of occupying the building in this case was not an act of use necessary for the preservation of the object of custody, was erroneous in the misapprehension of legal principles as to the act of use necessary for the preservation of the object of custody, and it

2. As to the ground of appeal on the claim for restitution of unjust enrichment

The assertion that, insofar as profits equivalent to the rent that the Defendant acquired by possession and use of the instant building are appropriated preferentially for the repayment of the Defendant’s claim for construction payment, which is the secured claim of lien, pursuant to Article 323(1) of the Civil Act, the Defendant’s return to the Plaintiff does not have any unjust enrichment equivalent to the rent that the Defendant should return to the Plaintiff is asserted for the first time in the final appeal, and cannot

3. Conclusion

Therefore, the part of the judgment below against the defendant regarding the request for delivery of a building is reversed, and that part of the case is remanded to the court below for a new trial and determination. The defendant's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)