The scope of and criteria for determining "affiliateds" subject to a lessee's request for purchase;

Accessories subject to the claim for purchase under Article 646 of the Civil Code are objects attached to a building, which belong to the lessee's ownership, and which do not belong to the constituent parts of the building, and which bring objective convenience to the use of the building. Thus, the attached objects do not fall under the cases where the attached objects are attached for the use of the building for the special purpose of the lessee. The objective purpose of use of the building is to be determined by taking into account all the circumstances such as the structure of the building itself, the purpose of use agreed between the parties at the time of the lease agreement, the location of the

Article 646 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No. 4540, Jan. 19, 1982) (Law No. 1982, Feb. 26, 1993; Law No. 41627, Oct. 8, 1991)

Plaintiff (Counterclaim Defendant)

Defendant (Counterclaim Plaintiff)

Busan High Court Decision 92Na17129, 17136 decided Apr. 30, 1993

The appeal is dismissed.

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief).

1. Even in cases where a part of a leased house is used for any purpose other than residence, it is included in a residential building to which the Act applies pursuant to Article 2 of the Housing Lease Protection Act, but in cases where part of a non-residential building is used for the purpose of housing in light of the legislative purpose to ensure the stability of residential life, it cannot be deemed a residential building and such building shall be excluded from

In light of the records, we examine the reasoning of the judgment below in light of the records. The judgment of the court below is justified in finding that the building of this case owned by the plaintiff (Counterclaim defendant; hereinafter the plaintiff) was not a residential building under the Housing Lease Protection Act in light of the original purpose of use of the building of this case, the actual use of the building of this case, the actual use of the building of this case, the defendant's use of the first and the third floors above the ground of the first and the second floors above the ground of the second floor above the ground leased by the defendant (Counterclaim plaintiff; hereinafter the defendant) as a residential facility, and the second floor above the second floor above the ground leased by the defendant (Counterclaim plaintiff; hereinafter the defendant) was used as an office. The defendant did not err by misapprehending the rules of evidence or misapprehending the legal principles as to residential building under the Housing Lease Protection Act due to the misconception of facts or the misapprehension of legal principles as to residential building under the Housing Lease Protection Act.

2. On the grounds of the judgment below, the court below determined as follows: (a) the Defendant leased the instant building and constructed a boiler, 643,00 won in total in order to operate a stove house at the same place; (b) installed a boiler, hot-projecter, door-to-door entrance, door-to-door store decoration, gas, indoor electric lamps, and stairs electric, etc., and applied a paint; and (c) thereby, recognized that there remains value of 8,147,00 won at present; (d) in light of the original purpose of the instant building; and (e) the Defendant’s use status, etc., the above expenses paid by the Defendant are not for preserving the said building, nor for increasing its objective value, and thus, it cannot be deemed as necessary or beneficial expenses.

Article 626 of the Civil Code provides for the lessor's duty to repay refers to the cost invested by the lessee in order to increase the objective value of the leased object, and the cost required refers to the cost disbursed by the lessee for the preservation of the leased object. In this case, the decision of the court below that the construction cost incurred by the defendant in the building does not fall under this case is justified, and there is no error of law such as theory of lawsuit.

In addition, if the judgment of the court below that the above expenses paid by the defendant do not constitute the necessary or beneficial expenses that can be claimed for reimbursement to the plaintiff, it is not unlawful, it does not affect the result of this case whether the court below's assumptive judgment that the defendant renounced it in advance is correct, and it cannot be deemed null and void even if the defendant made an agreement to waive in advance the right to demand reimbursement for necessary or beneficial expenses.

3. Accessories attached to a building, which are subject to a claim for purchase under Article 646 of the Civil Act, are owned by a lessee, and are not owned by a building, and are not part of the building, which brings objective convenience to the use of the building. Thus, the articles attached to the building does not fall under a case where the building is attached for the use of the building solely for the special purpose of a lessee. The objective purpose of use of the building in question is to be determined by taking into account all the circumstances, such as the structure of the building itself, the purpose of use of the building as agreed between the parties at the time of the lease agreement, the location of the other building, the surrounding environment, etc. (see Supreme Court Decision 91Da

In the same purport, the court below's rejection of the defendant's right to purchase the attached article on the ground that the above facilities alleged by the defendant are the constituent parts of the building of this case or are used for the specific purpose of the defendant's management of scambling, and therefore are not subject to purchase, is just and acceptable, and there is no error of law by misunderstanding legal principles as to the right to purchase the attached article such as

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

Justices Park Jong-ho (Presiding Justice)