Whether an indirect possession is included in the possession of the lien holder, which is the requisite for the establishment of a lien (affirmative), and in a case where the direct possessor possesses the object and does not return it even after the lease contract, etc. which constitutes the establishment of a lien is terminated in the indirect possession, whether the relationship of possession is terminated (negative)

In order to recognize an indirect possession, it is necessary to establish a certain legal relationship between the indirect possessor and the person who directly occupies. Even when the lease contract, etc., which constitutes an occupancy in the indirect possession, is terminated due to the termination, etc., the right to claim a return of the indirect possessor’s direct possessor is not extinguished until the direct possessor returns the object. Therefore, in a case where the direct possessor fails to return the object even after the lease contract, etc., which forms an occupancy in the form of an occupancy, even after the termination of the occupancy contract, etc., the right to claim a return of the indirect possessor’s indirect possession is not extinguished, and thus, the right to claim a return of the object is not extinguished.

Articles 194 and 320 of the Civil Act

[Plaintiff-Appellant] 2002Ma3516 decided Nov. 27, 2002 (Gong2003Sang, 220)

Si Jae Construction Co., Ltd. (Law Firm Taeil, Attorneys Kim Jin-jin et al., Counsel for the plaintiff-appellant)

As shown in the attached list;

Defendant 31

New Spring Construction Co., Ltd. (Attorney Park Byung-chul, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2016Na2085102 decided December 20, 2018

The part of the lower judgment against Defendant 31 is reversed, and that part of the case is remanded to the Seoul High Court. All of the Plaintiff’s appeals are dismissed. The costs of appeal between the Plaintiff and Defendant 31 are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

A. The assertion that Defendant 10, Defendant 11, Defendant 15, and Defendant 16 are the lessee of the non-party union

Based on its stated reasoning, the lower court determined that the Defendants’ Intervenor (hereinafter “ Intervenor”) occupied the instant real estate 403 units through Defendant 10 and Defendant 11, and Defendant 15 and Defendant 16.

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

B. The Intervenor’s assertion that the instant real estate was used beyond the scope necessary for preservation

Based on its stated reasoning, the lower court determined that it is difficult to recognize that the Intervenor used or lent the instant real estate beyond the scope necessary for its preservation without the consent of its owner.

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the use necessary for the preservation of the articles of custody.

C. As to the duty to prohibit the use of custody articles under Article 324(2) of the Civil Act, assertion of misapprehension of the legal principle

The lower court determined that the Intervenor cannot be deemed as violating the duty of prohibiting the use of the custody property pursuant to Article 324(2) of the Civil Act on the ground that the Intervenor did not obtain a separate consent from the Plaintiff, a new owner, on the basis that the Intervenor obtained a consent from the Nonparty Union, the former owner of the instant real estate, and used the said real estate within the scope of obtaining such consent.

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the claim for extinguishment of lien, etc.

2. As to the Intervenor’s ground of appeal

A. The possession of the lien holder, which is the requirement for establishing a lien, is either direct or indirect possession (see, e.g., Supreme Court Order 2002Ma3516, Nov. 27, 2002). In order to recognize an indirect possession, a certain legal relationship between the indirect possessor and the person who directly occupies is required, i.e., a purchase and purchase relationship. Even if the lease contract, etc., which forms an occupancy relationship, is terminated on the indirect possession, is terminated on the grounds of termination, etc., the right to claim a return from the indirect possessor until the direct possessor returns the object. Therefore, in a case where the direct possessor fails to return the object even after the termination of the lease contract, etc., which forms an occupancy transaction relationship, the right to claim a return of the indirect possessor cannot be terminated, and thus, the relationship of indirect possessor’

B. The lower court determined that the Intervenor terminated a lease agreement concluded between the Intervenor and the Defendant 31 on the ground that the possession intermediary relationship between the Intervenor and the Defendant 31 terminated.

C. However, the above determination by the court below is difficult to accept in the following respect.

1) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) On July 11, 2012, the Intervenor leased Defendant 31 the instant real estate No. 104 to Defendant 31, and Defendant 31 occupied the instant real estate since that time.

B) As Defendant 31 did not pay monthly rent, the Intervenor notified the termination of the lease agreement on the ground of delinquency in rent, and filed a lawsuit against Defendant 31 seeking delivery, etc. of the instant real estate 104.

C) On December 4, 2014, the court rendered a favorable judgment on the part of the Intervenor as a non-litigation. The above judgment became final and conclusive around that time, but Defendant 31 continued to reside in subparagraph 104 of the instant real estate and occupied it until the date of closing argument in the lower court.

2) Examining the foregoing facts in light of the legal principles as seen earlier, even if the Intervenor entered into a lease agreement with Defendant 31 and had the Intervenor take possession of the instant real estate 104, it cannot be said that the Intervenor’s right to claim a return against the Intervenor 104 was extinguished unless Defendant 31 continued possession of the instant real estate 104 and did not return it to the Intervenor. Therefore, the mere fact that the said lease was terminated cannot be said to have ceased to exist between the Intervenor and Defendant 31.

3) Nevertheless, the lower court determined that the Intervenor terminated a lease agreement, thereby extinguishing the relationship between the Intervenor and the Defendant 31. In so determining, the lower court erred by misapprehending the legal doctrine regarding the title of possession, which constitutes the requirements for indirect possession, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point

3. Conclusion

Therefore, the part of the lower judgment against Defendant 31 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Defendant-Appellee: omitted

Justices Kim Seon-soo (Presiding Justice)