(a) The case holding that a clan has impliedly consented to the possession of the farmland of the custodian for the protection of a grave; or

(c) If there is a claim for reimbursement of useful expenses, whether the actual expenses should be calculated in addition to the existing increased value;

A. Even though Gap has cultivated and managed the instant rice and orchard that are owned by the clans without the consent of the clans, if the members of the clan have prepared for the use of rice, etc. from the clans every year, or provided for the agreed white field, and even though the members of the clan have known that they created rice or orchards each year, the possession of the instant land by Gap without cancelling the contract for the protection of graves can be deemed to have implied consent of the above clans.

B. If the above Gap cultivated and manages the instant rice field and orchard in accordance with the agreement with clans for the protection of graves, the instant rice field and orchard shall have the nature of an overland under the agreement for the protection of a grave. Thus, unlike general superficies and leases, the title trustee of the land of this case may not cancel the agreement, unless there exist reasons, such as neglecting the duty under the protection of a grave.

(c) The scope of reimbursement of beneficial costs should be calculated in full by the cost actually incurred by the possessor in order to improve the possession of the object and by the increase in its value, as selected by the restored person, so for the choice of the restored person who is the person liable for reimbursement of beneficial costs, the actual cost actually incurred and the increase in its value should be calculated.

(a) Article 192(b) of the Civil Act; Article 543(c) of the Civil Act;

Plaintiff 1 and four plaintiffs, Counsel for the defendant-appellant-appellee

Attorney Lee Jae-ho, Counsel for defendant-appellant

Jeonju District Court Decision 86Na86 delivered on September 17, 1986

The judgment of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division.

1. We examine the defendant's grounds of appeal.

In its reasoning, the judgment of the court below held that the defendant's assertion that the plaintiffs had a legitimate right to possess the real estate of this case based on the right of lease or superficies against the non-party before the non-party before the non-party who is a clan member before the defendant was entitled to possess the real estate of this case, Eul evidence 4-3 and 4 (the witness's statement, the non-party 1 and the non-party 2's testimony and the result of the defendant's personal questioning, and that there is no other evidence to acknowledge it

However, since the defendant had a legitimate right of lease or superficies, the land of this case was owned by the non-party 1, the non-party 3, who was the representative of the above clan around 1967 and was delegated by the non-party 3 who was the title holder of the above land to manage the above 20 graves, and the land was already reclaimed as a dry field with the consent of the court below on 1968, and the above non-party 3 was the Dong of the above non-party 3 and the above non-party 1, who was the title holder of the land of this case, had no right to use the above 4th anniversary of the fact that the above 1981 land had no right to use and manage the above 4th anniversary of the fact that the non-party 1 had no right to use and manage the above 4th anniversary of the fact that the defendant had no right to use and manage the 5th anniversary of the above 1967 land, the defendant had no right to use and manage the 5th anniversary of the above 1st day of the above 1983th day.

In this regard, since the defendant's possession of this case cannot be deemed to have no title, the court below decided that the title of possession is a superficies or a lease, or a management contract for the above land under a contract for the protection of graves, etc. should be decided with clear consideration of its contents, and then, the court below rejected the defendant's claim of this case without any title, and held that the defendant occupied this case without any title. In such a case, the court below erred in the misapprehension of legal principles as to the nature of the title in this case, and did not exhaust all necessary deliberations, thereby affecting the conclusion of the judgment by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The argument pointing this out has merit

2. We examine the Plaintiff’s grounds of appeal.

According to the reasoning of the judgment below, the court below held that, in calculating the beneficial cost for the Defendant’s claim for reimbursement of the beneficial cost, the Defendant created the instant rice field and orchard based on its evidence that there is a value equivalent to KRW 5,133,200 as the value of the instant land increases.

However, with respect to the claim for reimbursement of beneficial expenses, Article 203(2) of the Civil Act provides that the possessor may claim reimbursement of the amount of expenditure or increased amount in accordance with his choice only in cases where there is an increase in the value as to the expenses, amount, and other beneficial expenses disbursed to improve the possessor’s possession. Therefore, the scope of reimbursement is determined as determined by the buyer’s choice among the expenses actually disbursed to improve the possessor’s possession and the increase in the value thereof, which is the person liable for reimbursement of beneficial expenses. Therefore, for the right of choice of the person liable for reimbursement of the beneficial expenses, the beneficial expenses should be calculated in full from the actual expenses actually disbursed

Nevertheless, the lower court did not decide on the expenses actually incurred by the Defendant in clearing the instant land into rice and orchard, and calculated only the existing value increased due to such clearing, and deemed that the amount equivalent to KRW 5,133,200 constitutes the beneficial cost of the instant case.

According to Nonparty 1’s testimony, etc., it is difficult for the Defendant to calculate the expense solely based on the fact that the Defendant paid 6,00,000 won to 60 persons, i.e., 10,000 won per capita to develop the instant rice field and orchard in order to cultivate the instant rice field and orchard. However, in light of the relationship between the said witness and the Defendant and the calculation details of the expense, it is difficult to calculate the expense.

In addition, according to the appraisal result of Nonparty 5, which was incurred by the lower court in order to recognize the above 5,133,200 won, the above value of the building includes 57,600 won as the non-party 5's building out of the above value, and it seems that the above value of the building is not directly related to the beneficial cost for improving the land of this case, so it cannot be included in the above value of the building without reasonable grounds.

Ultimately, the court below did not err in the misapprehension of legal principles as to the calculation of beneficial costs, nor did it have affected the conclusion of the judgment by failing to exhaust all necessary deliberations in violation of the rules of evidence, and the allegation pointing this out

3. Therefore, without examining the different grounds of appeal, we reverse the judgment of the court below and remand the case to the Jeonju District Court Panel Division. It is so decided as per Disposition by the assent of all participating judges.

Justices Park Jong-hee (Presiding Justice)