[1] In a case where a lessor has no ownership or other right to lease the leased object, whether the lease contract is established (affirmative) and its legal relationship

[2] In a case where a lessor, who leased another person's real estate, terminated a lease contract on the grounds of rent delay, the case affirming a lessee's claim for return of unjust enrichment from the lessee to the overdue rent and name city

[1] Even though a lessor has no right to lease the leased object, a lease agreement is effective. Therefore, a lessor is obligated to have the lessee fully use and benefit from the leased object, and the lessee is obligated to pay the rent for use and benefit unless the lessor performs such duty. Upon termination of the lease agreement, the lessee is contractual obligation to return the leased object to the lessor. However, if the lessee is unable to make the lessee use and benefit from the leased object due to the lessee’s request for return of the leased object or for payment of the rent or the corresponding amount of the lease, etc., the lessor’s obligation becomes impossible. The lessee may refuse the lessee’s request for rent payment from the lessor thereafter on the ground that the lease is terminated due to nonperformance.

[2] Where a lessor leased a State-owned real estate, and the lease contract was terminated due to a lessee's default on rent, barring any special circumstance, the lessee is obligated to order the lessor to do so and to return the lessor's overdue rent up to the termination of the lease due to termination, and to return the lessor's unjust enrichment equivalent to the rent due to the possession and use of the real estate from the date of completion of the lease order

[1] Articles 546, 618, and 623 of the Civil Act / [2] Articles 550, 551, 618, and 741 of the Civil Act

[1] Supreme Court Decision 78Da1103 delivered on September 12, 1978 (Gong1978, 11069), Supreme Court Decision 93Da37977 delivered on May 10, 1994 (Gong1994Sang, 1645), Supreme Court Decision 95Da15087 delivered on March 8, 1996 (Gong196Sang, 1193)

Plaintiff (Attorney Lee Dong-sik et al., Counsel for plaintiff)

Defendant

Seoul Private District Court Decision 93Na34250 delivered on October 5, 1994

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the Defendant’s grounds of appeal.

1. Determination on the first and second grounds

A lease is established when one of the parties agrees to allow the other party to use or make profit from an object, and the other party agrees to pay rent for it (see Article 618 of the Civil Act). Furthermore, even if a lessor has no ownership or right to lease the object, a lease agreement is effective. Therefore, a lessor is obligated to have the lessee fully use or make profit from the object, and the lessee is obligated to pay rent for the use or profit unless the lessor is unable to perform his/her duty. Upon the termination of the lease agreement, the lessee is obligated to return the leased object to the lessor.

However, in such a case, if a lessor is unable to allow the lessee to use or make profits from the leased property on the grounds that the lessee is requested to return the object or to pay the rent therefor from the true owner, etc., the lessor’s obligation is impossible, and the lessee may refuse the lessor’s claim for rent payment after the lease is terminated due to nonperformance (see, e.g., Supreme Court Decisions 71Da1848, Jun. 27, 1972; 78Da1103, Sept. 12, 1978).

In the instant case, even if examining the record, it is insufficient to view that the Defendant received a claim for the return of the instant real estate from the State which is the owner of the instant real estate subject to the instant lease agreement, or a claim for the indemnity or rent thereof, and that the Plaintiff, the lessor, was unable to perform the obligation to use and make profits from the instant real estate, and there is no evidence to support that the said lease agreement was terminated due to the nonperformance of the Plaintiff, the lessor, around July 30, 192, such as the assertion of the lawsuit.

Therefore, as pointed out in the theory of lawsuit, if the lease contract on the real estate of this case between the plaintiff and the defendant was terminated due to the delay in payment by the defendant as determined by the court below, the defendant is obligated to return to the plaintiff the amount of unjust enrichment equivalent to the rent due to the possession and use of the real estate of this case until the termination of the lease due to the termination of the lease, unless there are special circumstances. The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the lease contract, and there is no error in the misapprehension of legal principles as to the lease contract, and the above judgment of the court below did not contain the purport of rejecting the defendant's assertion that the lease contract of this case was terminated due to the plaintiff's impossibility of performance on July 30, 192. All arguments are without merit.

2. Judgment on the third ground for appeal

The fact-finding by the court below on the point that the theory of lawsuit points out (the fact-finding by the defendant recognized that the whole real estate of this case is occupied and used by the defendant) is just and acceptable in light of the records, and there is no error of law such as non-exercise of the right to request the name and the incomplete hearing, etc. on the other hand, since the termination of the lease of this case, the defendant only occupied the real estate of this case and did not actually use or profit from it, and the defendant's above assertion cannot be accepted as a new argument in the party members who did not claim up to the court below. All arguments are without merit.

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

Justices Cho Chang-tae (Presiding Justice)