A. Whether the rent for the portion of the site should also be calculated in addition to the rent for the building when calculating the obligation to return unjust enrichment due to the continuous possession and use of the lessee after the termination of the building lease contract

(b) Where a lessee of a building loses the authority to use and profit from the building as a result of the termination of a lease contract with the landowner regarding the site of the building, whether or not the lessee has paid a duty to return unjust enrichment to the landowner or lessee of the building who continues to occupy part of the building after the termination of the lease contract;

A. Where a lessee is obligated to return an amount equivalent to the rent resulting from the use and profit-making of a building to a building lessee as unjust enrichment during the period in which he/she has continuously occupied and used the building without returning it to the building lessee after the termination of the lease contract as to the building, in calculating the rent amount, the rent amount in this context is calculated, and where the building is ordinarily leased, it is naturally accompanied by the use of the site portion, and the rent amount in the site portion is also included in the rent for the building as well as the rent for the site portion. Therefore, the rent for the building should also be calculated as well as the rent for the site portion.

B. Even if a lease contract on land between a building owner and a landowner has already been terminated by the notification of cancellation of the lease contract on land, and the owner of the building has lost the right to use and profit from the land, the owner of the building shall be deemed to be the illegal possessor of the entire site in relation to the owner of the building on the land. Therefore, in relation to the owner of the building, the owner of the building shall be deemed to be the illegal possessor of the building on the land. Therefore, the lessee of the building who occupies a part of the building shall not be deemed to have been liable to return unjust enrichment to the owner of the land within the extent that the lessee of the building is not obliged to return unjust enrichment as the owner of the land. Therefore, the owner of the building shall be deemed to have suffered a loss equivalent to the rent for the use and profit from the portion corresponding to the illegal possession of the building by the lessee of the building within the limit of such debt, and the lessee who has continuously occupied and used the building after the termination of the building lease contract as referred to in paragraph (a) shall be deemed to have suffered unjust enrichment equivalent to

Article 741 of the Civil Act

Plaintiff

Defendant-Appellant Park Jong-soo, Counsel for the defendant-appellant

Seoul Civil District Court Decision 93Na21100 delivered on April 27, 1994

Of the judgment below, the part against the defendant shall be reversed.

This part of the case is remanded to the Panel Division of the Seoul Civil Court.

The grounds of appeal are examined.

1. According to the records, on June 28, 1976, the plaintiff newly constructed the building of this case on the land with the approval of the use of the land of this case from the non-party 1 and the non-party 2's co-ownership. On October 4, 1978, the plaintiff was leased the above land from the owner of the above land for a fixed period of six months. Meanwhile, on August 19, 1983, the plaintiff entered into a lease contract with the defendant for the above building with the lease deposit amount of two million won, monthly rent of 80,000 won, monthly rent of 80,000 won, and the lease contract for the above building was implicitly renewed and terminated by the plaintiff's termination notice at the end of April 1985. It is clear that the defendant had resided in the above building from the end of February 1993 and continued to occupy and use it.

In fact, the defendant is obligated to return the amount equivalent to the rent for the use of and profit from the above building to the plaintiff as unjust enrichment during the period in which the lease contract for the above building was terminated and continued to be possessed and used without returning it to the plaintiff. In this context, in calculating the amount of the rent for the above building, it is naturally incidental to the use of the above land and the rent for the land portion is also included in the speed of the rent for the building in addition to the rent for the building. Therefore, the rent for the above building as well as the rent for the land portion should be calculated together. Therefore, the court below did not err in determining the scope of return of unjust enrichment for the amount equivalent to the rent for the above building in accordance with the calculation method.

In addition, as pointed out in the grounds of appeal, even if the lease contract with the plaintiff and the land owner of this case had already been terminated on April 7, 1986 by the lessor's notice of termination, and the plaintiff has lost the right to use and profit from the above land, the plaintiff shall be deemed to be an illegal occupant of the entire site due to the relation with the above land owner, who is the owner of the building of this case. Therefore, the plaintiff shall be liable to return the entire amount of unjust enrichment equivalent to the rent for the above part of the building site. The defendant who occupies a part of the building cannot be deemed to be liable to return unjust enrichment to the land owner to the extent that he bears the obligation to return unjust enrichment. Thus, the plaintiff shall be deemed to have suffered losses from the rent due to the use and profit from the land corresponding to the defendant's illegal possession within the limit of the obligation. In relation with the plaintiff, the defendant shall be deemed to have made unjust enrichment from the rent for the building that includes the benefit from the use and profit from the building site. It seems to have judged to the same purport as a substitution.

2. According to the reasoning of the judgment below, the court below rejected the above assertion on the ground that the defendant had to deduct the amount of the above deposit money from the unjust enrichment of this case claimed by the plaintiff, since the defendant had been residing in the building before the conclusion of the lease contract on the building of this case with the plaintiff's consent and was demanded by the plaintiff to bear part of the increased amount of the deposit money for land which is the part of the land which is the site of the building of this case to be paid by the plaintiff, but agreed that the plaintiff should take the above amount of two million won as the deposit for the agreed lease while entering into the lease contract on the building of this case. Thus, the court below rejected the above assertion on the ground that there is no other evidence that the defendant did not believe all the witness's testimony as stated in the judgment as to the fact that the plaintiff paid 2 million won to the plaintiff or would take it as the deposit money for the building of this case.

However, as seen above, the Plaintiff and the Defendant had already concluded a lease contract between the lease deposit and the monthly rent of 2 million won, 80,000 won, and 12 months with respect to the instant building on August 19, 1983. Moreover, even according to the factual relations recognized by the lower court, the Plaintiff continued to receive not only the above lease term but also the monthly rent of 80,000 won from the Defendant until February 1985 without any specific objection. Furthermore, according to the evidence Nos. 15-3 (Japan) employed by the lower court, the Plaintiff sent to the Defendant on October 4, 1984 a certificate claiming return of the name of the building upon the expiration of the lease term of the said building, and the Defendant failed to comply with such request, and the Defendant cannot be deemed to have concluded the lease deposit without any special reasons, unless there is any special reason to deem otherwise among the reasons for appeal by the lower court to have determined that the lease deposit would have been paid up to 300,000 won per month.

3. Therefore, the part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)