Whether a person who exercises a right of retention on the basis of the claim for construction price constitutes a use necessary for the preservation of the property in custody (affirmative), and whether in such cases, whether a person is obligated to return the profit equivalent to the rent to the owner (affirmative)

According to Article 324 of the Civil Code, the lien holder shall possess the thing in custody with the care of a good manager, use it beyond the scope necessary for the preservation of the thing in custody, lend it to him/her, or offer it as security without the consent of the owner, and the lien owner may request the extinction of the lien if the lien holder violates the above obligation. Therefore, the person who exercises the lien based on the claim for construction price, resides and uses it in the house in custody, which is the object in custody, is an act helpful for the preservation of the house in custody, and it constitutes a use necessary for the preservation of the object in custody, unless there are special circumstances. Furthermore, even if the lien holder uses it necessary for the preservation of the object in custody,

Article 324 of the Civil Act

Supreme Court Decision 2004Da69420 Decided January 26, 2006, Supreme Court Decision 2005Da59963 Decided June 30, 2006

Plaintiff

Defendant 1 and one other

Changwon District Court Decision 2008Na12853 decided April 30, 2009

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. The defendants' assertion that possession is illegal possession

Examining the reasoning of the judgment below in light of the records, the court below rejected the plaintiff's assertion that the possession of the second and third floors of the building in this case by the defendants was a tort, and it is just to determine that the defendants can refuse the plaintiff's request for extradition by exercising the right of retention on the basis of the claim for construction price as stated in the judgment against the plaintiff who was awarded the successful bid of the building in this case. There is no violation of the rules of evidence or incomplete

2. misunderstanding of legal principles as to the right to receive fruits and res judicata

According to Article 324 of the Civil Act, a lien holder shall possess the thing under custody with the care of a good manager, use it beyond the scope necessary for the preservation of the thing under custody, lend it to the owner, or offer it as security without the consent of the owner, and if the lien holder violates the above obligation, the lien holder may request the extinction of the lien. Thus, the person who exercises the lien on the basis of the contract price bond resides and uses it in the house under custody, which is the object under custody, is an act helpful for the preservation of the house under custody, and it constitutes a use necessary for the preservation of the object under custody, unless there are special circumstances. Furthermore, even if the lien holder uses it as necessary for the preservation of the object under custody, barring special circumstances, he is obligated to return the rent to the owner (see Supreme Court Decisions 2004Da69420, Jan. 26, 2006; 2005Da59963, Jun. 30, 2006, etc.)

According to the reasoning of the judgment below, the court below held that the defendants' profits from the use of the second and third floors of the building in this case should be deducted from the defendants' claim for construction price. The judgment of the court below is just in light of the above legal principles and there are no errors in the misapprehension of legal principles as alleged in the grounds of appeal.

In addition, the argument that the lien holder has the right to receive negligence only when the owner of the thing in custody is the debtor, and that the right to receive negligence does not arise if the owner of the thing in custody is a third person who is not the debtor, cannot be accepted as a argument contrary to

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)