2019Da221550 Land Delivery

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B

Law Firm L&C Officer, Counsel for the plaintiff-appellant

Attorney Kim Nam-sung

Seoul Central District Court Decision 2018Na29886 Decided February 21, 2019

July 25, 2019:

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below acknowledged the facts as indicated in its reasoning based on adopted evidence, and found the following facts: (1) the former G G G party including the land of this case did not have a survey control point, and (2) the former Gwanak-gu was divided into Seocho-gu I and H, which is the site of the land of this case and the building of this case 1, 2, and 1973, and even around 1974 and around 1977 when the building was newly constructed on a divided site, it appears that the boundary survey was conducted based on the above base point; (3) the survey appraisal result of the first instance court was conducted based on the above base point: Provided, That in light of the fact that more than 30 years have passed since the registration of the cadastral map of this case and it was merely a survey conducted using a supplementary point installed after 1979 in order to enhance the accuracy of the detailed survey, the court below determined that the survey appraisal conducted in the first instance court of this case was conducted in accordance with the method of boundary restoration. In light of logic and the record.

2. Regarding ground of appeal No. 2

A. Article 201(1) of the Civil Act provides that “the possessor of the good will acquire the fruits of the object in possession.” Here, the possessor in good faith refers to the possessor in good faith who is aware of the title that includes the right to receive the fruits. However, there is a reasonable ground for misunderstanding such misunderstanding. Furthermore, the possessor in good faith is presumed to have possession in good faith pursuant to Article 197 of the Civil Act, and the possessor was found to have occupied without title, and the presumption of good faith in possession has not been broken up (see, e.g., Supreme Court Decision 9Da6350, Mar. 10, 200). In addition, since the gains from using the land are the same as the fruits arising therefrom, a bona fide possessor in good faith pursuant to Article 201(1) of the Civil Act does not have the obligation to return the gains from possession and use of the land of a third party even if he/she occupied and used the land without any legal ground and inflicted damages on that person (see, e.g., Supreme Court Decision 2012Da28287, Feb.

B. On August 17, 2018, the Defendant asserted that even if the Defendant had the obligation to return the amount equivalent to the rent to the Plaintiff as unjust enrichment in the statement of grounds of appeal submitted by the lower court on August 17, 2018, the Defendant’s possession is presumed to be a bona fide possession, and the Defendant’s right to receive negligence is recognized, so the amount of unjust enrichment equivalent to the rent accrued prior to January 10, 2017, which is

Nevertheless, the court below accepted the reasoning of the judgment of the court of first instance as to the portion of the claim for restitution of unjust enrichment, and held that the defendant is liable to return the amount equivalent to the rent to the plaintiff in unjust enrichment without stating any grounds for the defendant's argument about the right to receive unjust enrichment added at the court below. Such judgment below erred by omitting judgment of the parties or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

3. Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Decision 200

Justices Park Sang-ok

Justices Noh Jeong-hee

Justices Kim Jae-hwan in charge