[1] In a case where a person holding a claim that may refuse the owner's claim for the return of the article owned by the owner can grant the third party the right to possess on the basis of the owner's consent or the agreement with the owner, whether the third party who is entrusted with or acquired the right to possess may also refuse the owner's claim for the return of the article owned by the owner (affirmative)

[2] In a case where Eul, the representative director of Gap corporation, delivered Eul to Byung a letter of waiver of the automobile owned by Eul, and Byung delivered the said automobile to Byung along with the letter of waiver of the automobile, and Byung used and profit-making the said automobile while operating the automobile, and Eul sought against Eul for delivery of the automobile and return of unjust enrichment equivalent to the usage fee, the case holding that Gap corporation cannot exercise a real right right claim or claim a return of unjust enrichment based on ownership as to the circumstance that the automobile was occupied and used under the separate agreement between Gap and Eul

[1] Article 213 of the Civil Act / [2] Articles 213 and 741 of the Civil Act

Seoul High Court Decision 20

Defendant

Seoul Southern District Court Decision 2019Na54274 decided January 17, 2020

The part of the judgment below regarding the claim for delivery of automobiles and the claim for return of unjust enrichment equivalent to the usage fees are reversed, and this part of the case is remanded to the Seoul Southern District Court. The remaining appeals are dismissed.

The grounds of appeal are examined.

1. The parties' assertion, the first instance court and the lower court's determination

The Plaintiff asserted that: (a) the Defendant had a duty to deliver the instant vehicle as the Defendant possessed without title; (b) the Defendant had a duty to deliver the instant vehicle from October 2, 2013 to the Defendant; (c) the Defendant had a total of KRW 312,640 for traffic offense; and (d) the Plaintiff had a total of KRW 4,100,990 for damages incurred to the Plaintiff, including automobile tax and the fine for negligence not covered by mandatory insurance; and (d) the Defendant had a total of KRW 2,469,370 for unjust enrichment of KRW 2,05,370 for the Plaintiff’s automobile premium paid by the Plaintiff; (b) the Defendant had a duty to pay the Plaintiff a total of KRW 6,469,00 (= KRW 312,640 + KRW 4,000 + KRW 4,000 + KRW 900 + KRW 2,05,370; and (c) the Defendant had a duty to pay money at the rate of KRW 300,30.

As to this, the Defendant asserted to the effect that Nonparty 1, the former representative director of the Plaintiff, offered the instant automobile to Nonparty 2, the creditor, and also prepared and delivered a letter of waiver of the automobile, and the Defendant again asserted to the effect that it is impossible to comply with the Plaintiff’s request, since Nonparty 2 is in the position to receive the instant automobile along with the said letter of waiver

The first instance court rejected the Defendant’s claim on the grounds that the Defendant cannot be deemed to have a legitimate source of right to oppose the Plaintiff, who is the owner of the instant automobile, and rejected the remainder of the Plaintiff’s claim by citing the claim for extradition of the instant automobile, the claim for damages of KRW 312,640, and the claim for restitution of unjust enrichment equivalent to the royalty. The lower court also rendered a judgment dismissing the Defendant’s

2. Judgment of the Supreme Court

A. The part on the claim for delivery of the instant automobile and the part on the claim for restitution of unjust enrichment equivalent to usage fees

An owner may demand the return of an article from the person in possession of that article: Provided, That if the possessor has the right to refuse the return thereof, he/she may refuse the return thereof (Article 213 of the Civil Act). In this context, the right to refuse the return includes claims accompanying the possession, such as leases, deposits, contracts for work, etc., and in cases where the holder of such right can confer the right to possess a third party on the basis of the consent of the owner or the agreement with the owner, etc., the third party who has the right to possess the article from him/her may refuse the request for return of the article owned by the owner on the ground that he/she has the right to possess it

According to the records, at the time of October 2013, Nonparty 1, the representative director of the Plaintiff, delivered the instant automobile to Nonparty 2, and at that time, Nonparty 1: (a) deemed the instant automobile to be possessed by the obligee, not by the owner; and (b) does not interfere with the sale, transfer, or any other act of the obligee; (c) upon permission for the storage and operation of the automobile, any inner valuables of the vehicle are not cut off and no one may operate even after the present time; (d) prepared and delivered a car abandonment note (No. 4) containing the contents that “the vehicle from this hour is operated.” (e.g., Nonparty 2) delivered the instant automobile to the Defendant at around the same time, along with the said car abandonment note, and accordingly, the Defendant was using and making profits from the instant automobile from October 2, 2013.

According to the above facts, Nonparty 2 acquired the right to possess the instant vehicle directly pursuant to the agreement on the use and profit-making included in the letter of waiver of the instant vehicle and granted the right to possess the instant vehicle to a third party. In light of the above legal principles, as long as the right to possess the instant vehicle is maintained and continued as it is, it constitutes an owner of the right to claim the return of property asserted by the Plaintiff. Thus, Nonparty 2 may not claim the return of unjust enrichment against the Defendant who occupied and used the instant vehicle pursuant to a separate agreement with Nonparty 2 as well as Nonparty 2, who was first reverted to the right to possess the instant vehicle.

Nevertheless, solely on the grounds indicated in its reasoning, the lower court rejected the Defendant’s assertion that the instant vehicle had the right to possess and use the instant vehicle, thereby citing the Plaintiff’s claim for the extradition of the instant vehicle and the claim for restitution of unjust enrichment equivalent to the royalty. In so determining, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the

B. The part against the remaining defendant (the damage compensation as cited in the original trial, KRW 312,640)

The Defendant appealed to the entire part of the judgment below against the Defendant, but this part of the judgment does not include specific grounds for objection in the petition of appeal and the appellate brief.

3. Conclusion

Therefore, the part of the judgment below regarding the claim for delivery of automobiles and the return of unjust enrichment equivalent to the fees are reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The defendant's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Jae-hyung (Presiding Justice)