[1] The duty to keep articles under Article 60 of the Commercial Code

[2] The case affirming the judgment below which held that repair expenses, etc. paid by the person who occupied and used the machinery equipment constitute ordinary necessary expenses

[1] Article 60 of the Commercial Code provides that a merchant who received an offer for commercial transactions shall not be obliged to take custody of the goods such as samples received at the same time within a certain scope until such goods are returned, even if he/she refuses the offer, and shall not be obliged to compensate for damages equivalent to the profits from the use of the place where the goods are kept in custody.

[2] The case affirming the judgment of the court below that the possessor of the machinery can not seek reimbursement from the person who restored the machinery when he acquired the negligence

[1] Article 60 of the Commercial Act / [2] Article 203 (1) of the Civil Act

[2] Supreme Court Decision 63Da1119 delivered on July 14, 1964 (No. 12-2, 200) Supreme Court Decision 66Da1857 delivered on December 20, 196 (No. 14-3, 335)

Lee Dong-won Co., Ltd. (Attorney Han Man-chul, Counsel for the plaintiff-appellant)

Korean Corporate Lease Co., Ltd. (Law Firm Pacific, Attorneys Kim In-tae et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 94Na8142, 8159 decided July 21, 1995

The appeal by the Plaintiff (Counterclaim Defendant) is dismissed. The costs of appeal are assessed against the Plaintiff (Counterclaim Defendant).

The grounds of appeal are examined.

1. On the first ground for appeal

According to the reasoning of the judgment below, after compiling the evidence adopted in the judgment, the court below acknowledged facts as stated in its reasoning. Since the possession of the part of the building of this case by the defendant (Counterclaim plaintiff; hereinafter only referred to as the defendant) can not be deemed an illegal occupancy because the plaintiff (Counterclaim defendant; hereinafter referred to as the plaintiff) consented or consented, or the defendant cannot be deemed an illegal occupancy under the good faith principle, or there is no reason attributable to the defendant, it cannot be deemed an illegal occupancy. Further, the part of the building of this case, which is the factory where mediation and destruction was installed with 1 grassland, etc., and the above grassland 1, etc. and the above grassland 1, etc., were merely occupied, and the above grassland 1, etc. were not actually operated. Thus, the defendant cannot be deemed to have obtained substantial benefit from the use of the building of this case as a factory by occupying the building of this case, and there is no violation of the rules of evidence and the legal reasoning that the defendant occupied the building of this case or occupied the building of this case as a legitimate ground for appeal.

2. On the second ground for appeal

Article 60 of the Commercial Act provides that a merchant who has received an offer in commercial transactions shall be able to assume the duty to keep the goods, such as samples received at the same time as the offer, until such goods are returned, even if he/she refuses the offer within a certain scope, and also to seek reimbursement of the expenses incurred in the custody of the goods. It is only a provision concerning the continued maintenance and preservation of the goods in question until the goods are returned, and it shall not be a provision concerning compensation for losses equivalent to the profits accruing from the use of the place where the goods are stored, as alleged by the plaintiff. Therefore, the judgment of the court below to the same purport is just, and it shall not be deemed that there were errors by misapprehending the legal principles as to Article 60 of the Commercial Act or by misapprehending the parties' claims, as otherwise alleged in the ground for

3. On the third ground for appeal

According to the reasoning of the judgment below, the court below, as an occupant of the plaintiff, could recover an amount equivalent to 12,910,00 won from the restored defendant for the purpose of preserving each item listed in the attached list 6, 7, and 8 of the attached list 2 of the judgment of the court below, which is equivalent to the above repair cost. This is a claim arising from each item of the above repair cost, which cannot be delivered to the defendant until the defendant is repaid with the above repair cost. In light of the evidence admitted in the judgment, the court below rejected the plaintiff's allegation that the plaintiff's above repair cost or concurrent performance of the above article cannot be accepted as a justifiable ground of appeal on the premise that the plaintiff's repair cost or delivery of the article is not necessary for the plaintiff's repair cost or delivery of the article from May 1994 to September 30, 194, since it is recognized that there is no need for misunderstanding of the legal principles as to the above article's repair cost or delivery of the article from the plaintiff's owner.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)