[1] Where a lien holder leases an object without the consent of the debtor who is the owner, whether the owner may claim the validity of the lease (negative)

[2] The case holding that the possessor who leased the real estate from the lien holder without the consent of the debtor as the owner cannot set up against the owner's claim for the delivery of real estate and the return of unjust enrichment

[1] Although the possession of the lien holder, which is the requirement for establishing a lien, is not directly or indirectly owned, the lien holder has no disposal authority to lease the object to another person unless the debtor's consent is obtained (see Article 324 (2) of the Civil Code), and the lien holder's act of lease is an infringement on the owner's disposal authority, and thus, cannot claim the effect of the lease to the owner.

[2] The case holding that the possessor who leased the real estate from the lien holder without the consent of the debtor who is the owner cannot oppose the owner's transfer of the real estate and the claim for restitution of unjust enrichment

[1] Article 324(2) of the Civil Act / [2] Article 324(2) of the Civil Act

Plaintiff

Defendant 1 and one other

January 28, 2008

1. The Plaintiff:

A. The Defendants deliver the real estate listed in the separate sheet;

B. The Defendants pay 3,496,00 won per month and 184,000 won per month from November 2, 2007 to the completion of delivery of real estate listed in the separate sheet.

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

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Determination on the cause of the claim

The Plaintiff is the owner of the real estate listed in the attached list (hereinafter “instant house”), and the fact that the Defendants possessed the instant house from April 2, 2006 to the date of closing of argument is not a dispute between the parties, and according to the result of the appraiser’s appraisal of rent for rent for rent after April 2, 2006, it can be acknowledged that the monthly rent for rent for rent for the instant house was 184,000.

Therefore, the Defendants have the duty to deliver the instant house to the Plaintiff unless they prove that they have any legitimate right of possession, and to return unjust enrichment equivalent to the monthly rent of KRW 184,00 from April 2, 2006 to the completion date of delivery.

2. Determination on the right of retention defense

A. Summary of the parties' assertion

The Defendants asserted that, since they leased the instant house from Nonparty 1, the lien holder for the instant house, the Plaintiff could not respond to the Plaintiff’s request for extradition until the Plaintiff repaid the secured debt of the lien to Nonparty 1, and that the construction cost to be paid to Nonparty 1 remains.

B. Facts of recognition

The plaintiff 2, 4, 2, 3, 12-1 to 3, the testimony of the witness 1, and the purport of the whole pleadings. The plaintiff entered into a contract for the new construction of 40 stories on December 16, 203 with the plaintiff 1 and the above 10-2 for the settlement of the construction price of the above 10-5, the plaintiff 1 to 30-2, the plaintiff 1 to 50-1, the plaintiff 2, who was the plaintiff 1 to 60-2, was not entitled to the above 10-7, the settlement of the construction price of the construction price of the 10-7, the settlement of the 10-1, the 10-7, the 205-1, the 200-7, the 105-1, the 2004, the 200-7, the 14, the 2005-7, the 2004, the 200.

(c) Markets:

Although the possession of the lien holder, which is the requirement for the establishment of a lien, is not directly or indirectly possessed, the lien holder has no disposal authority to lease the object to another person unless the debtor has given his/her consent (see Article 324(2) of the Civil Act). Such lease by the lien holder is an infringement on the disposal authority of the owner, and thus, cannot claim the effect of the lease to the owner.

In the instant case, only the evidence presented above and the facts recognized accordingly are insufficient to recognize that Nonparty 1 had a claim for the construction price against the Plaintiff, and even if Nonparty 1 had a claim for the construction price against the Plaintiff and the lien is established, the fact that the Defendants leased the Plaintiff from Nonparty 1 in light of the above legal principles as to the lien cannot be asserted against the Plaintiff unless the Plaintiff, the owner, gave consent.

D. Sub-committee

Therefore, the Defendants are obligated to deliver the instant housing to the Plaintiff, and return the unjust enrichment calculated at the rate of KRW 184,00 per month from April 2, 2006 to November 1, 2007 (i.e., 19 months x 184,000) and the unjust enrichment calculated at the rate of KRW 184,00 per month from November 2, 2007 to the completion of the said delivery.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified.

[Attachment] List of Real Estate: (Omission)

Judges Song Jae-sung