(영문) 전주지방법원 2010.9.2.선고 2008가합6754 판결

1. The defendant shall pay to the plaintiff 40, 624, and 00 won with 5% interest per annum from October 9, 2006 to August 20, 2009, and 20% interest per annum from the next day to the day of full payment.

2. The costs of lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

Purport of claim

The order is as set forth in the text.

Reasons

1. Facts of recognition;

The following facts are not disputed between the parties, or described in Gap evidence 1, 4, and 5, and the witness

testimony may be recognized by taking into account the overall purport of the pleading.

A. The plaintiff and ○○ have been engaged in the business of leasing construction materials with a trade name called a panel as a couple.

B. On October 9, 2006, ○ sold all of the construction materials and fixtures of the board (hereinafter referred to as “the instant construction materials”) to the Defendant for KRW 81,248,00 (hereinafter referred to as “the instant sales contract”) and the sales amount against the Defendant was set off at KRW 104,00,00,000.

C. On April 2, 2007, the Plaintiff and ○○ (hereinafter “Plaintiff”) shared consultations, and the Defendant was partly destroyed or lost in the process of leasing, recovering, etc. the instant construction materials registered in his name by receiving delivery of the instant construction materials, and then purchased and used them again as necessary.

at present, it is not possible to specify the materials delivered by ○○.

2. The assertion and judgment

A. Summary of the argument

1) The Plaintiff jointly owned the instant construction materials, and thus, this case’s sales contract concluded by ○ without the Plaintiff’s consent is null and void. The Defendant asserts that the Defendant, without any legal cause, gains profits of KRW 1/2, 40, 624, and 00 of the amount equivalent to the instant construction materials, and thereby causes damage equivalent to the same amount to the Plaintiff, and the Defendant is obligated to return it to the Plaintiff.

2 ) 이에 대하여 피고는 , 이○은 원고와 이 사건 건설자재를 공동으로 소유하고 있었거나 판넬의 동업자이었고 , 이 사건 매매계약은 이○♣의 책임 하에 이루어진 것이므로 유효하다고 주장한다 .

B. Determination

1) Ownership of the instant construction materials

The property of the husband and wife whose ownership is unclear shall be presumed to be co-ownership by the husband and wife (Article 830(2) of the Civil Act), and the share of the co-owner shall be presumed to be equal (Article 262(2) of the Civil Act).

According to the evidence No. 4, the plaintiff is recognized to be registered as the business operator of the panel, but at the time of the operation of the panel, the plaintiff and the ○○ was the husband and wife, and there is no dispute between the parties, and according to the records No. 9-2 and No. 3, the plaintiff and the ○○ was in charge of entering into the lease contract in the process of renting the place of business of the panel around January 25, 2006. In full view of the above, the construction materials of this case are co-owned under the co-ownership of the plaintiff and the ○○○-owned co-ownership of each 1/2 shares of the plaintiff and the ○○-owned co-ownership of each 1/2 shares of the plaintiff and the ○-owned co-ownership of each 1/2 shares of the 1).

2) Whether the instant sales contract on one/2 shares of the instant construction materials is null and void

The disposal of the article jointly owned requires the consent of all the co-owners, but (Article 264 of the Civil Code) co-owners can dispose of their co-ownership without the consent of other co-owners (Article 263 of the Civil Code). If the article jointly owned is sold to a third party without the consent of other co-owners, disposal within their co-owners can be deemed valid, but in principle, within the share of the other co-owners, disposal is null and void as a disposal act by a person who is not authorized to dispose

In full view of the purport of the argument in this case’s testimony, the Plaintiff was absent from the absence at the time of the instant sales contract (the Plaintiff asserted that the Plaintiff was hospitalized in the hospital, and the witness Lee ○ stated that the Plaintiff was hospitalized in the hospital), and the Plaintiff was found to have failed to obtain the Plaintiff’s Dong with respect to the sale of the construction materials of this case. Thus, the instant sales contract on 1/2 shares of the construction materials of this case, which are the Plaintiff’s co-ownership, is null and void.

Meanwhile, the defendant alleged that the sales contract of this case entered into by the joint owner of this case or the partner of the sales panel is valid. However, as seen above, the defendant's assertion and the statement of evidence No. 2 alone cannot be recognized as having the right to dispose of 1/2 shares of the construction materials of this case, which are the plaintiff's co-ownership, and since there is no other evidence to acknowledge it, the defendant's assertion is without merit.

3) Duty to return unjust enrichment

As long as the instant sales contract on 1/2 shares of the instant construction materials is null and void, the Defendant gains profits from acquiring 1/2 shares of the instant construction materials without any legal ground, and thereby, the Plaintiff, the owner, suffered damages equivalent to the same amount. Therefore, the Defendant is obligated to return the instant construction materials to the Plaintiff for unjust enrichment with respect to 1/2 shares of the instant construction materials.

Meanwhile, in full view of the purport of the entire pleadings with respect to the testimony of the witness 0%, the plaintiff and the defendant

It is recognized that ○○ was aware of the fact that the Defendant entered into the instant sales contract with the Defendant without the Plaintiff’s consent, and the Defendant is a malicious beneficiary who received the instant construction materials, knowing that there is no legal ground.

In addition, according to the above facts, the defendant can not return the original substance itself due to the loss or destruction of the construction materials of this case delivered by him. Thus, the value of the construction materials of this case shall be returned, and the fact that the value of the construction materials of this case is about 1/2, 40, 624, 00 of the purchase price of this case does not conflict between the parties.

Therefore, the defendant is obligated to pay to the plaintiff 40, 624, 000 won and interest interest thereon the amount calculated by each rate of 20% per annum under the Civil Act from October 9, 2006 to August 20, 2009, the delivery date of a copy of the written application for the alteration of the construction materials of this case, to August 20, 2009, and 5% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

3. Conclusion

If so, the plaintiff's claim is justified.

Judges

The presiding judge shall organize judges;

Judges Pipe-jin

Judges Park Jae-min

Note tin

1) There may be room to deem that the Plaintiff and the instant construction materials were in combination with the instant construction materials by recognizing the partnership relationship between the Plaintiff and the instant construction materials.

Since high-priced plaintiff and objection are filed based on the sharing relationship, it first determined whether they are co-ownership or not.

However, even if it is a partnership-ownership relationship, the disposal of the partnership-ownership requires the consent of all the co-owners, and the co-ownership is without the consent of all the co-owners.

If one of the joint owners disposes of the joint ownership without the consent of another joint owner, it shall be null and void by an act of disposal by a person who is not authorized to dispose of the joint ownership.

is the same.

참조조문

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