1. A case where the establishment of a lien is recognized;

2. A case where a decision is made with respect to the use necessary for the preservation of preserved articles under the proviso of Article 324 (2) of the Civil Act

1. The case where the defendant purchased the land owned by the plaintiff and completed a new construction of the building on the land with the consent of the plaintiff when only the down payment was made with the purchase of the land owned by the plaintiff, and completed the construction of the building by borrowing part of the fund from the plaintiff, and the above building is owned by the plaintiff. However, if the defendant repays the money of the plaintiff to the plaintiff by the agreed date, the plaintiff agreed to transfer the above building ownership to the defendant, but the defendant failed to pay the above money by the agreed date, and thus the plaintiff seeks the name of the above building against the defendant, the defendant may exercise a lien within the scope of the construction cost invested by the defendant excluded from the above money borrowed from the plaintiff in the total construction

2. If the Defendant, who is the lien holder, uses most of the above building (1st floor 66.73 square meters 75.71 square meters 75.71 square meters 1st floor) and leases 56.73 square meters 1st floor to another person, there is no room for the Plaintiff, the debtor, to have the right to claim the termination of the lien.

Articles 320 and 324 of the Civil Act

Supreme Court Decision 64Da1797 delivered on March 9, 1965 (Supreme Court Decision 1914Da1914 delivered on March 9, 196, and Article 324(1)358 of the Civil Act)

Plaintiff

Defendant 1

Defendant 2

Seoul District Court Decision 71 Gohap148 (Main Office) 254 (Counterclaim Office) in the first instance court

The original judgment shall be modified as follows:

Defendant (Counterclaim Defendant (Counterclaim Defendant) 1 received gold KRW 1,184,885 from the Plaintiff (Counterclaim Defendant) and at the same time, Defendant (Counterclaim Defendant) 1) paid 10 square meters for the remainder of 10 square meters, excluding the remainder of 10 square meters enclosed by “1,66 square meters in total, 3 small 7 square meters in total, 75 square meters in total, 75 square meters in total, 1 square meters in total, 75 square meters in total, 75 square meters in total, 75 square meters in total, and 10 square meters in total, and 75 square meters in total, 10 square meters in total, 10 square meters in total, 200 square meters in total, 20 square meters in total, 3 square meters in total, 200 square meters in total, and 10 square meters in total, 30 square meters in total, 200 square meters in total, 200 square meters in total.”

The Plaintiff (Counterclaim Defendant) pays the Defendant (Counterclaim Plaintiff) KRW 1,184,885 (the amount ordered to exchange with the name of the house under the above paragraph (2)).

The remaining claims of the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) are dismissed.

All the judgment of the court on the counterclaims in the principal lawsuit shall be divided into two parts, one half of which concerning the counterclaims in the principal lawsuit shall be borne by the plaintiff (the counter defendant), one half of which concerning the counterclaims in the principal lawsuit shall be borne by the defendant, etc., and one half of which concerning the counterclaims shall be borne by the defendant, etc., and one half of which concerning the counterclaims shall be borne by the defendant (the counter defendant) 1.

A provisional execution may be executed on the part of payment of the above house name and money.

Plaintiff (Counterclaim Defendant, Plaintiff L, et al.)’s claims of the principal lawsuit

The defendant 1 (the plaintiff 1) ordered 56 square meters, 72,500 won per month, from July 1971 to the completion of the above order, to 142,500 won per month, excluding the part enclosed by 10 square meters, excluding the part enclosed by 2.5 square meters, 75 square meters, and 10 square meters, 2.7 square meters, and 2.5 square meters, from among the buildings described in the order, the part enclosed by 10 square meters, 2.5 square meters, 2.5 square meters, from among the buildings described in the order, the part enclosed by 10 square meters.

Litigation costs shall be borne by the defendant, etc.

Defendant 1’s counterclaim

The Plaintiff shall pay 5,426,000 won to Defendant 1 (explosive from the trial)

Expenses for counter-action shall be borne by the plaintiff.

The purport of the Plaintiff’s appeal

The part against the plaintiff in the original judgment shall be revoked, and the judgment such as the purport of the claim regarding the principal lawsuit shall be dismissed as to the counterclaim by Defendant 1.

All the costs of the lawsuit are assessed against the Defendants, and the costs of the lawsuit are assessed against the Defendants;

Defendant 1’s purport of appeal

From among the parts against the counterclaim of the original judgment, the same part against the defendant is revoked, and the same judgment as the above purport of the claim is added.

1. First, we judge the plaintiff's main claim.

As to the facts that the plaintiff's above construction cost was owned by the non-party 1, the non-party 4 and the non-party 1, the non-party 1 and the non-party 2 were the non-party 5's new construction cost, and the non-party 1 and the non-party 2 were the non-party 5's new construction cost, and the non-party 1 and the non-party 2 were the non-party 1 and the non-party 5's new construction cost was the non-party 1 and the non-party 4's new construction cost was the non-party 1 and the non-party 5's new construction cost was the non-party 1 and the non-party 2's new construction cost was the non-party 1 and the non-party 3's new construction cost was the non-party 1 and the non-party 4's new construction cost was the non-party 1 and the non-party 2's new construction cost was the non-party 1's new construction cost.

Therefore, the defendant is entitled to exercise a right of retention on this building which he has possessed until he receives the full payment from the plaintiff's construction cost of KRW 4,184,885 after deducting the plaintiff's investment of KRW 3,00,000 from the total construction cost of KRW 1,184,885.

In this regard, even if the above lien takes place, the plaintiff's assertion that, as the defendant lends the building to the defendant 2 without obtaining the plaintiff's consent, the plaintiff's claim for its extinction under Article 324 of the Civil Code is made.

However, as seen earlier, Defendant 1 uses most part of the building and enables the Defendant to use only that part (8 of the first floor). Although the lien holder, in principle, does not lend the object of custody without the obligor’s consent, and if the lien is violated, even if the obligor is able to claim the extinction of the lien, if it is leased to the extent that it is necessary for the existence of the building, it would not be sufficient that the claim for extinguishment of the lien would occur to the Plaintiff, the obligor, in such a case.

Defendant 1 made a protest to the effect that even if the principal and interest of KRW 3,00,000 against the plaintiff is owed to the plaintiff, if the defendant did not repay it by May 30, 1971, the defendant's owner promised to repay it to the building, or that it is invalid by Article 607 and Article 608 of the Civil Code.

However, this is the purport that he seems to cancel the prior confession that he had recognized this building as owned by the plaintiff, and it is necessary to prove that the confession was caused by mistake in order to cancel the confession, and that it was against the objective truth, and there is no evidence, and as seen above, this building is confirmed as owned by the plaintiff from the beginning of the party, and therefore, the objection to this point is groundless.

Therefore, the defendant is obliged to receive the remainder of the construction cost of KRW 1,184,885, and at the same time, to order the occupied part of the building.

Then, in light of the purport of the argument of the parties to the testimony of the plaintiff, the court of first instance and the non-party 8 and the non-party 9 as to the claim for return of unjust enrichment, the room of this building is 19. The defendant 1 uses 11 out of them from July 1971 to now, and it can be recognized that the amount equivalent to the rent of the first month from that of the plaintiff. As seen above, the defendant used the building in return for the request of the plaintiff from the plaintiff on June 1971, and used it in return, so long as the defendant did not comply with the request of the plaintiff on June 2, 1971, and is now coming to use it, he used the building in return for unjust enrichment and suffered losses from the plaintiff, and thus, it should be refunded to the plaintiff. As seen above, the amount equivalent to the rent of the first month from the 10th day to the 10th day of the argument, and the defendant used the same 10th day to the 10th day of the plaintiff.

2. To judge the part of the counterclaim claim filed by the defendant 1;

The defendant asserts that, as alleged in the above first priority defense, since the remaining amount of the construction cost is KRW 5,426,00,00, the plaintiff has a duty to return it, without any legal ground, since the plaintiff gains profit equivalent to the same amount and suffered loss from the same defendant.

In regard to this, the plaintiff asserted that the counterclaim was unlawful in relation to the plaintiff's claim of the principal lawsuit or its defense method and defense. However, as seen above, when the plaintiff seeks the name of the building as the principal lawsuit, the defendant asserted the lien as the construction cost reimbursement claim and claimed the secured claim as the counterclaim, which is related to the defense of the principal lawsuit.

As set forth in the judgment on the first point defense of the plaintiff, the defendant is acknowledged to have contributed to KRW 1,184,885 in order to establish the building owned by the plaintiff. This shall be deemed to have been unjust enrichment for the plaintiff as alleged above. Therefore, the defendant shall return this to the defendant.

3. If so, the plaintiff's main lawsuit and the defendant 1's counterclaim shall be accepted within the scope mentioned above, and the remainder shall be dismissed in an unfair manner. Since the original judgment with different conclusions is unfair, they shall be modified as above, and as to the burden of litigation costs, Articles 89, 92, and 96 of the Civil Procedure Act shall be applied to the provisional execution declaration, Article 199 of the same Act and Article 3 of the Temporary Measures for Civil Procedure Act shall be applied to the provisional execution declaration.

Judges Jeon Soo-dae (Presiding Judge)