(영문) 춘천지방법원 2016.5.12.선고 2015가소6828 판결

1. The Defendant shall pay to the Plaintiff 520,00 won with 5% interest per annum from October 12, 2015 to November 7, 2015, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 4/5 are assessed against the Plaintiff, and the remainder are assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant sent to the plaintiff KRW 2,930,000 and its duplicate to the plaintiff from June 29, 2015.

The amount calculated by 5% per annum and 15% per annum from the next day to the day of full payment.

H. D. D.

Reasons

1. Basic facts

A. The Defendant leased the instant apartment in KRW 150 million from D, the owner of 104-dong 502 (hereinafter “the instant apartment”) in Chuncheon-si, and resided in the instant apartment after leasing the instant apartment in KRW 150 million as the lease deposit.

B. On September 18, 2014, the Chuncheon District Court rendered a voluntary decision to commence the auction on the instant apartment on September 18, 2014, and the Plaintiff received a decision to permit the sale of the said apartment at the above auction procedure, and paid in full KRW 21,290,000 for the sale price on June 29, 2015.

C. On August 3, 2015, with respect to the amount of 209, 49, and 459 won to be actually distributed in the above auction procedure, the distribution schedule was formulated as follows: (a) KRW 341,940 on August 1, 2015; (b) KRW 150,000 to the Defendant, the creditor of the second lease deposit; and (c) KRW 59,157,519 to the Korea Housing Finance Corporation, the creditor of the third lease deposit; and (d) on the date of distribution implemented on the same day, the said distribution schedule became final and conclusive.

D. On August 3, 2015, the Defendant sent text messages to the Plaintiff on the day on which “the Plaintiff would be ready to prepare for the name certificate and the director’s expenses.” The Defendant sent text messages to the Plaintiff.

E. On August 12, 2015, the Defendant was a director of F apartment 105 Dong 1503, Cheongcheon-si, F apartment 1503, and received the dividend of KRW 150 million on the same day.

F. The Defendant did not notify the Plaintiff of the password of the instant apartment entrance entrance, and on August 20, 2015, the Plaintiff sent a text message stating that the above password would be known to the Defendant on August 20, 2015, but the Defendant refused to comply therewith. Accordingly, the Plaintiff’s failure to remove the key repair hole and installed a new laver, and 5.20,00 won was required at the expense.

【Uncontentious facts, Gap’s 1 through 3, 5, Eul’s 1-1 through 6, Eul’s 3, and the purport of the whole pleadings

2. Determination as to the cause of action

A. The Plaintiff’s assertion 1) The Defendant acquired the ownership of the instant apartment on June 2015 by paying in full the sale price.

29. From August 17, 2015, when the Plaintiff became aware of the Defendant’s director, the Plaintiff obtained unjust enrichment from the current rent. Since the monthly rent equivalent to the instant apartment is KRW 1.1 million, the Defendant is obligated to pay the Plaintiff the amount of KRW 1.1 million, which is an amount equivalent to the rent for one month 18 days due to the return of unjust enrichment ( = 1.1 million + (1.1 billion won x 1.18 days / 30 days). 2) The Defendant is obligated to pay the Plaintiff the amount of KRW 5.20,000,000,000,000,000,000 won, which is the amount equivalent to the rent for 1.1 million days due to the return of unjust enrichment.

4) Therefore, the Defendant is obligated to pay to the Plaintiff a total of KRW 2.30,00 ( = 1760,000 + KRW 520,00 + KRW 650,00) and damages for delay calculated at the rate of 5% per annum from June 29, 2015 to the service date of a duplicate of the instant complaint, and 15% per annum from the next day to the day of full payment.

B. Determination

1) Article 3-5 of the Housing Lease Protection Act concerning a claim for return of unjust enrichment on the rent-to-rent basis is reasonable, and where an auction has been held pursuant to the Civil Execution Act on the leased house, the right of lease expires by auction: Provided, That this shall not apply to the right of lease with opposing power, unless all the deposit is repaid. In light of the legislative purport and contents of the aforementioned provision, where a lessee who has both opposing power and preferential right of payment under the Housing Lease Protection Act is able to receive dividends in full by selecting a right of payment on a leased house and claiming a distribution of the deposit in an auction procedure where the lessee can receive dividends in full, barring special circumstances, the right of lease cannot be terminated until the distribution schedule for the lessee becomes final and conclusive. Thus, even if the successful bidder continued to use the leased house after paying the successful bid price and acquired it, it shall be deemed that the lessee has no substantial relation with the right of lease and profit accrued until the lease agreement becomes final and conclusive, and thus, it shall not be deemed that the lessee has accrued profit within the period of 980 years of unjust enrichment.

In the auction procedure on the instant apartment, the fact that the distribution schedule was established on August 3, 2015 is as seen earlier. As such, the Defendant’s use and profit-making of the instant apartment until August 3, 2015 is based on the right of lease, and thus, it did not lead to unjust enrichment in relation to the Plaintiff, the buyer, and the Defendant’s use and profit-making of the instant apartment, and on August 12, 2015, the fact that the instant apartment was a director or profit-making on August 12, 2015 is the same as seen earlier. As such, the Defendant did not use and profit-making the instant apartment after August 13, 2015, and thus, did not lead to the obligation

Therefore, the period during which the Defendant is obliged to return unjust enrichment from the use and profit-making of the instant apartment to the Plaintiff is the nine days from August 4, 2015 to August 12, 2015.

Furthermore, in relation to the amount of unjust enrichment, the plaintiff asserted that the monthly rent of the apartment of this case is KRW 1.1 million, but there is no evidence to acknowledge it, and there is no other evidence to confirm the monthly rent of the apartment of this case. [The plaintiff may seek tin as to whether to file an application for rent appraisal, but it is against the plaintiff's claim for payment of the rent equivalent to the rent equivalent to the rent equivalent to the rent equivalent to the rent equivalent to the rent equivalent to the rent equivalent to the rent equivalent to the rent equivalent to the rent equivalent to the rent equivalent to the rent equivalent to the rent equivalent to the rent equivalent to the rent equivalent to the rent equivalent to the rent equivalent to

Therefore, the plaintiff's claim for this part is without merit.

2) As to the removal and installation cost of the instant apartment, the fact that the distribution schedule was finalized on August 3, 2015 at the auction procedure for the instant apartment was as seen earlier, and accordingly, the Defendant’s right to lease on the instant apartment was extinguished on August 3, 2015, and accordingly, the said right was extinguished.

From August 4, 2015, the defendant's possession of the apartment of this case was an illegal possession with no title.

We examine whether the Defendant occupied the instant apartment after August 12, 2015 in the instant apartment.

The possession of an object refers to the objective relationship that appears to be a factual control of a person under the social norms, and in order to be in de facto control, it does not necessarily mean that the object is physically and practically controlled, but should be judged in conformity with the social norms by taking into account the time and spatial relationship with the object, the principal right relationship with the object, the possibility of control of another person, etc. (Supreme Court Decision 2005Da24677 Decided September 30, 2005).

Although the Defendant, on August 12, 2015, went to the apartment of this case, as long as he did not inform the Plaintiff of the password of the entrance of this case, he cannot be deemed to have carried out delivery (delivery) within the meaning of the transfer of possession, and it is reasonable to deem that the Defendant still occupied the apartment of this case.

Therefore, 5.20,00 won incurred by the Plaintiff in removing the above gambling and establishing a new fishing village is losses in proximate causal relation with the Defendant’s illegal possession of the apartment of this case. Thus, the Defendant is liable to the Plaintiff for damages due to the tort, and the Defendant is liable to the Plaintiff for the damages that caused the tort.

10. From December 12, 10 (in principle, liability for damages arising from a tort is established as a tort in light of the concept of fairness even without a separate demand for performance, and damages for delay occur (Supreme Court Decision 2013Da211032 Decided November 27, 2015). Therefore, the date on which the Plaintiff removed the above decline and installed a new fish farm, is the initial date of the damages for delay, but there is no assertion or proof as to the date (the evidence submitted by the Plaintiff is included only in the amount of expenditure in the evidence No. 3, but the date of preparation is not indicated). However, on June 29, 2015 (the date on which the Plaintiff acquired the ownership of the apartment of this case) the Plaintiff filed a claim for damages for delay from the date following the date on which the Plaintiff acquired the ownership of the apartment of this case) to the date on which the claim for damages for delay was made by removal of the above zero percent (15%) and the damages for delay from October 12, 2015 to the date of this case.

3) With respect to the repair cost of the instant apartment complex, it is not sufficient to recognize only the images of Gap evidence No. 4-1 to No. 6, and there is no other evidence to prove otherwise.

Therefore, without further examining the remaining issues, the plaintiff's claim for this part is without merit.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 520,00 won and the amount of 5% per annum from October 12, 2015 to November 7, 2015, and 15% per annum from the next day to the day of complete payment. Thus, the plaintiff's claim is accepted within the above scope of recognition, and the remainder is dismissed as there is no ground.