(a) Whether the lender may rescind the contract for the reason of the death of the borrower, in granting a loan for the use of land for the purpose of owning a building;

B. Criteria for determining whether sufficient period of use and profit-making under Article 613(2) of the Civil Code has elapsed

A. In the case of a loan for use of land, for the purpose of general ownership of a building, the necessity for use and profit-making of the land in question exists, unless there exist any special circumstances, and this does not automatically lose the purpose of the contract even if the borrower himself/herself dies, and thus, does not immediately result in the achievement of the purpose of the contract. Therefore, in such a case, the lender may not terminate the loan for use on the ground of the borrower’s death notwithstanding Article 614 of the Civil Act.

B. Whether sufficient period of use and profit-making under Article 613(2) of the Civil Act has elapsed should be determined by whether it is reasonable to recognize the right to terminate the contract to the lender from an equitable standpoint, comprehensively taking into account the circumstances at the time of the loan agreement, the period of use and utilization of the borrower, and the circumstances that the lender needs to return

A. Article 614(b) of the Civil Act;

[Judgment of the court below]

Defendant 1 and four others

Changwon District Court Decision 92Na6727 delivered on June 10, 1993

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. We examine the reasoning of the judgment of the court below in light of the records. The evidence consistent with the defendants' assertion that the plaintiff leased the part of the site of this case to the deceased non-party, who is the deceased's predecessor, should be rejected, and it is hard to find that the plaintiff had accepted the construction of the building site of this case to the above non-party because it was difficult for the plaintiff to construct the building site of this case on the basis of such macroficial evidence, and therefore, the court below's decision that the contract between the plaintiff and the above non-party was concluded for the loan of use without the agreement period for the part of the site of this case, and there is no error of law of misunderstanding of facts due to a violation of the rules of evidence

2. The lower court determined that the Defendants’ use of the instant site portion was acknowledged as loan of use between the Plaintiff and the Nonparty, on the premise that the use of the said site portion was acknowledged as a loan of use between the Plaintiff and the Nonparty, and that the period of validity of the Plaintiff’s letter of termination of the loan of use on the ground that the period of time had already lapsed.

However, according to the records, the plaintiff is also asserting that the above non-party, the borrower, has already died with the specific reasons for cancelling the loan agreement of this case (see Paragraph (3) of the legal brief dated March 17, 1992, stated on the date of the seventh argument of the court of first instance).

Therefore, the court below should have determined whether the plaintiff's intent to seek termination based on the death of the borrower in accordance with the provision of Article 614 of the Civil Act was followed by the purport that such assertion was included. However, it cannot be said that there was an error in the exercise of the right to request tin or the omission of judgment, which did not take such measures.

Meanwhile, according to the legal reasoning of the court below, it is clear that the loan relationship with respect to the portion of the site in this case is for the purpose of owning a building. With respect to a loan for use of land for the purpose of owning a building, the use of and benefit from the land in this case continues to exist as long as it is necessary to use and benefit from the building in this case, barring any special circumstances, and this does not automatically lose the purpose of the contract even if the borrower dies, and thus, it does not immediately result in the achievement of the purpose of the contract. Therefore, notwithstanding the provisions of Article 614 of the Civil Act, the lender cannot terminate the loan agreement for use on the ground of the fact of the borrower's death.

Therefore, even if the court below did not separately determine whether the plaintiff's assertion for the termination of the contract was made on the ground of the borrower's death, it did not affect the conclusion of the judgment, the court below's error did not affect the conclusion of the judgment. Thus, the court below's determination that such error did not affect the conclusion of the judgment.

3. According to Article 613(2) of the Civil Act, if the duration of a loan for use is not specified, the borrower shall return the object at the time when the contract or the use and profit-making under the nature of the object is completed, but even if the use and profit-making is not completed in reality, the lender may terminate the contract at any time and claim the return of the object borrowed when the sufficient period for the use and profit-making expires. Whether the sufficient period for the use and profit-making has expired or not shall be determined based on whether it is reasonable to recognize the right to terminate the contract to the lender from the perspective of fairness, comprehensively taking into account the circumstances as at the time of

As duly determined by the court below, in full view of the following: (a) the Plaintiff and the Nonparty were the land for the purpose of owning a building for the purpose of housing use; (b) the Defendants, who were the Nonparty and their inheritors, were living and used for about 15 years since the construction of the instant building on the said part of the site; and (c) if the said housing building is a solid building that could not be easily dismantled and easily dismantled because of its structure and present status; (d) the circumstances at the time of lending and borrowing such as the above recognition, the borrower’s period of use, and the objective phenomenon of the borrowed land or the above ground building; and (e) other circumstances that the Plaintiff, the lender, need to return the said part of the site, are not clearly recorded, it is difficult to conclude that the period sufficient for the use and profit-making period of the said part of the site has expired.

Therefore, the judgment of the court below to this purport is correct, and it cannot be said that there is an assertion of misunderstanding the legal principles as to the theory of lawsuit.

4. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)