The meaning of the time when the period sufficient for use and benefit under Article 613(2) of the Civil Code has elapsed.

If, in cases where no agreement exists with respect to a loan for use, the period of time has expired even if the use and profit has not been completed in reality, the lender may terminate the loan for use at any time.

Article 613(2) of the Civil Act

Supreme Court Decision 4292 civilianSang759 Decided December 24, 1959

Plaintiff

Maduki Bacul

Supreme Court Decision 78Da654 Delivered on July 11, 1978

Seoul Central District Court Decision 77Na538 delivered on March 4, 1978

The retrial suit shall be dismissed. The costs of the lawsuit shall be borne by the plaintiff.

The grounds for retrial shall be examined.

1. According to the records, the plaintiff's ground of appeal contains a statement that the decision of the court below was contrary to the decision of the court below rendered on December 24, 1959, but it is clear that the plaintiff's ground of appeal is that the price of the subject-matter of lawsuit is 5,600 won in this case, and it is a small amount of case under the Trial of Small Claims Act. Thus, the plaintiff can file an appeal for this reason only if there is a cause falling under any of subparagraphs of Article 3 of the same Act. The ground of appeal is clear that there is no reason falling under any of subparagraphs of Article 3 of the same Act in the judgment of the court below. Thus, it is clear that the court below's ground of appeal cannot be viewed as a legitimate ground of appeal.

If so, the above party member's final judgment was based on the absence of a judgment on the fact that it constitutes a part of the case claimed in the grounds for final appeal, and there is a ground for retrial for a refusal of judgment under Article 422 (1) 9 of the Civil Procedure Act.

2. Therefore, the judgment of the court below should be seen as having judged contrary to the precedents such as the theory of lawsuit.

The judgment of the court below may terminate the loan contract with the purport that the defendant repair fraternity permanently uses part of the land owned by the plaintiff for the purpose of installing a pumping station, and that the defendant repair fraternity installed the pumping station for the purpose of installing the pumping station, without any agreement, the plaintiff cancelled the above contract on November 6, 1976, and even if the contract was terminated on February 15, 1976, the plaintiff expressed his intention of termination as a delivery of the copy of the above contract. In the loan for free use without any fixed deadline, the lender may terminate the above contract after the expiration of the period sufficient for the use and profit-making of the object of the loan. Since the conclusion of the loan for free use contract can be recognized as a policeman on December 1, 1975, it can be recognized that the contract for the above loan for free use was concluded, and therefore, it cannot be viewed that the claim for the return of the above loan for free use and profit-making after the expiration of the period of 192.

Article 613(2) of the Civil Act provides, if no agreement has been made at the time, the borrower shall return the contract or object at the time when use or profit-making has been completed by its nature. However, if the period sufficient for use or profit-making has elapsed, the lender may rescind the contract at any time. The purport of this provision is that the borrower may rescind the contract at any time, if, in the loan for use, the use or profit-making has been completed in accordance with the nature of the object of the loan for use or loan for use, although the borrower may return the object, if, in reality, the use or profit-making has been completed by the nature

Although the above precedents of party members are in accordance with the former Civil Code, it is interpreted that there is no agreement of the period in the loan for use, and if the purpose of use is not specified in the loan for use, it shall not be appropriate if the decision of the court below determines the purpose of use in the loan for use, such as this case, it is obvious that the decision of the court below has made a decision contrary to the above precedents of the party members. Thus, the theory of appeal for this reason shall not be adopted.

Therefore, even if the judgment was omitted in the above final judgment, the conclusion that the appeal was dismissed is justifiable, and the theory of retrial on this point is groundless.

3. Article 3 subparag. 1 of the Trial of Small Claims Act provides that an appeal may be filed when the judgment on whether or not a violation of the Act, order, rule or disposition is violated of the Constitution, order, rule or disposition, and the judgment on whether or not a violation of the law, order or disposition is made is unreasonable. However, when the judgment on whether or not the original judgment violates subordinate law or disposition superior to the higher court, the judgment may be filed as the grounds for appeal, and Article 2 of the Rules on Trial of Small Claims provides that an appeal or re-appeal shall specify only the reasons falling under any subparagraph of Article 3 of the Act, and it shall be deemed not to be written when the grounds for appeal

However, the judgment of the court below did not consider the provisions of Articles 387 (2) and 635 of the Civil Code, and in the case of a lease with no agreement for a period, it is argued that there was no judgment on it even after the expiration of the prescribed period after the notice of termination was given by analogy in the case of a loan for use. However, this theory is nothing more than an argument about the improper decision on the violation of the superior law as seen earlier, but it is obvious that the court below did not make a decision on the violation of the superior law. Thus, this point cannot be viewed as a legitimate ground for appeal. Thus, the second ground for retrial cannot be seen as a ground for retrial.

For the above reasons, the retrial is dismissed pursuant to Article 430 of the Civil Procedure Act, and the costs of the retrial are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Tae-won (Presiding Justice)