[1] Whether a bona fide possessor shall return the benefit acquired from the possession or use of the object in possession

[2] The case reversing the judgment of the court below which ordered the return of benefits acquired from the possession or use of a building in good faith on the ground that the possessor may be recognized in good faith

[1] According to Article 201(1) of the Civil Act, a bona fide possessor shall be deemed to have acquired the fruits of an object possessed. Since profits derived from the use of a building are equivalent to the negligence of the building, a bona fide possessor shall not be obliged to return the profits arising from such possession and use even if he/she occupied and used another person's building without any legal ground and thereby caused damage to him/her.

[2] The case reversing the judgment of the court below that ordered the return of benefits acquired from the possession or use of a building in good faith on the ground that there is room for recognition as the possessor in good faith

[1] Articles 201(1) and 741 of the Civil Act / [2] Articles 201(1) and 741 of the Civil Act

[1] Supreme Court Decision 86Da1996, 1997 decided September 22, 1987 (Gong1987, 1622), Supreme Court Decision 95Da573, 580 decided May 12, 1995 (Gong1995Sang, 2112), Supreme Court Decision 94Da27069 decided August 25, 1995 (Gong195Ha, 3256)

Plaintiff

Kim-ro (Attorney Park Do-young, Counsel for the defendant-appellant)

Gwangju District Court Decision 94Na6112 delivered on September 7, 1995

The part of the judgment of the court below concerning the payment of money is reversed, and that part of the case is remanded to the Panel Division of the Gwangju District Court. The remaining appeals are dismissed. The costs of the appeal are assessed against the defendant.

We examine the grounds of appeal.

1. As to the part of the specification of a building

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the registration of transfer of ownership, which was completed in the name of the plaintiff on December 31, 1991, was committed by the act of forging the plaintiff's private document and thus cancelled, and accepted the defendant's claim for the explanation of the part of the building of this case in possession on the ground that the presumption of the above registration is maintained. In light of relevant evidence and records, the above fact-finding and judgment of the court below are all acceptable, and there is no violation of the rules of evidence or incomplete deliberation such as the theory of lawsuit.

All arguments are without merit.

2. As to the portion of payment of money

On November 30, 1992, the lower court determined that the instant building is presumed to be owned by the Plaintiff, and that the Defendant was obligated to pay the amount at the rate of KRW 500,000 per month, which is the amount equivalent to the rent from December 1, 1992 to the date of the scambling, based on the fact that the Defendant leased and occupied the part of the instant building from Nonparty 1 to Nonparty 1. The lower court accepted the Plaintiff’s claim for return of unjust enrichment.

However, according to Article 201(1) of the Civil Act, a bona fide possessor shall be deemed to have acquired the fruits of an object possessed. On the other hand, gains from the use of a building correspond to the negligence of the building. Thus, a bona fide possessor shall not be obliged to return gains from the possession and use of another person's building even if he/she occupied and used the building without any legal ground and caused damage to it (see, e.g., Supreme Court Decisions 81Da233, Sept. 22, 1981; 86∑196, 1997, Sept. 22, 1987).

According to the records, the purport of the defendant's assertion is not the plaintiff, but the actual owner of the building of this case is the non-party 2, who is the plaintiff, who is the plaintiff, and the non-party 1, who is living in his place, was delegated by the above non-party 2 with the authority of the plaintiff and leased the part of possession to the defendant. Meanwhile, the plaintiff was indicted against the non-party 2 for the charge of completing the registration of ownership transfer from the above non-party 2 through the crime of forging a private document, etc., so in such a case, the defendant may be recognized as a bona fide possessor. Accordingly, the court below should have determined the scope of liability after examining the circumstances, etc. leading up to the commencement of possession of the above possession by the defendant.

Nevertheless, the court below's decision as above without doing so will be erroneous in the misapprehension of legal principles as to the possessor's acquisition of negligence and unjust enrichment, and due to insufficient deliberation. Therefore, it is reasonable to point this out.

3. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, among the judgment below, the part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed as they are without merit. The costs of appeal to the part are assessed against the losing party. It is so decided as per Disposition by the

Justices Ahn Yong-sik (Presiding Justice)