[1] The case holding that where a lessor and a lessee concluded a lease contract for an existing building on the land and its ground, and a lessee removed an existing building with the consent of a lessor and constructed a new building on the ground, the lease contract for the land and its existing building was changed into a land lease contract for the purpose of owning a new building with the object of lease

[2] The method of calculating the purchase price of the building in the case of exercising the lessee's right to purchase the building under Article 643 of the Civil Code

[3] Whether a lessor is obligated to compensate for all expenses incurred by a lessee in constructing a new building on the leased land as an effect of a lessee’s exercise of a right to demand the purchase of a ground object under Article 643 of the Civil Code (negative)

[4] The scope of the building subject to the claim for purchase under Article 643 of the Civil Code

[5] The method of calculating unjust enrichment to be returned by the lessee after the termination of the lease contract for the land lease for the purpose of owning a building

[1] The case holding that, in case where a lessor and a lessee concluded a lease contract on a parcel of land and an existing building on the ground, and a lessee removed an existing building with the consent of a lessor and constructed a new building on the ground, the remaining lease term at the time of completion of a new building with one year or more shall be four months, even though the remaining lease term at the time of completion of a new building is less than four months, the lessee constructed a new building with a large amount of expenses, and the lessor consented to the removal and new construction of the existing building, the initial lease contract for the parcel of land and the existing building for the purpose of owning the new building

[2] When the period of a land lease contract for the purpose of owning a building expires, the purchase price of the building is the market price assessed under the current condition of the building at the time of exercising the right to purchase, comprehensively taking into account the location of the building in addition to its own price, various circumstances of surrounding land, etc., as a whole, when the owner of the building exercises the right to purchase against the lessor.

[3] If the right to purchase a ground object is exercised under Article 643 of the Civil Code, the effect of concluding a sales contract between the lessor and the lessee for the building on the leased site with the market price of the building at the time of exercising the right to purchase the building has occurred, and the lessor is not obliged to compensate for all the costs incurred by the lessee for the construction of the building on the leased site, including the cost of removal of the existing building.

[4] A building subject to a claim for purchase as stipulated in Article 643 of the Civil Code includes accessories or facilities attached thereto which the lessee owns the building on the leased land and constructed according to its necessity, and which can not be easily separated from the building, and which give objective convenience in using the building. However, unlike this, it does not constitute things or facilities installed by the lessee for its special purpose or business.

[5] In the land lease for the purpose of owning a building, the amount of unjust enrichment to be returned by the lessee after the termination of the lease contract is equivalent to the rent, and the amount equivalent to the above rent is the actual rent at the time of unjust enrichment. Thus, the amount of unjust enrichment cannot be calculated on the basis of the rent amount in the absence of the deposit.

[1] Articles 105 and 643 of the Civil Act / [2] Article 643 of the Civil Act / [3] Article 643 of the Civil Act / [4] Article 643 of the Civil Act / [5] Articles 618 and 741 of the Civil Act

[2] Supreme Court Decision 87Meu390 decided Jun. 23, 1987 (Gong1987, 1235)

An unlimited partnership company (Attorney Lee Yong-hoon, Counsel for the plaintiff-appellant)

Defendant 1

Defendant 2 (Attorney Ansan-gu et al., Counsel for defendant-appellee)

Seoul High Court Decision 2001Na66699, 66712, 66705 decided July 5, 2002

The part of the lower judgment against the Plaintiff (Counterclaim Defendant) regarding the counterclaim is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the Plaintiff (Counterclaim Defendant)’s appeal is dismissed.

1. Facts acknowledged by the court below

Comprehensively taking account of the evidence adopted in its judgment, the court below determined on March 20, 199 that the plaintiff (the title of the counter-party to the counter-party shall not be indicated below) transferred the land of this case and the automobile factory of this case 68.80 square meters (hereinafter referred to as "existing buildings") to the defendants on March 20, 199, with the lease deposit deposit of 50 million won, monthly rent of 5 million won, and the lease term of 19 March 19, 200. The defendants tried to lease the land of this case and the existing buildings to use them as the rest area of 0 billion won, but the previous buildings were too worn out to be used as the rest area of 10,000 won and notified the plaintiff of the purchase deposit of the purchase deposit of 828,000 square meters of the aggregate building of the roof of this case on the ground of this case from June 20, 199 that the plaintiff was not entitled to use the above 100,0000 square meters of the above building after the expiration of 201.

2. Determination on the grounds of appeal Nos. 1 and 2

The court below held that the term of the lease agreement of this case was only one year, and only four months existed from November 200 on the completion date of the construction of the construction to the expiration date of the contract, even though the defendants paid a large amount of expenses, construction of the building of this case, removal of the existing building and new construction of the building of this case, etc., the original lease agreement of this case, which used the land of this case and the existing building as the object of lease, was changed into the land lease for the purpose of owning the building of this case, and the lease agreement of this case was terminated on March 6, 200 by the plaintiff to the defendants on March 6, 200, and the contract of this case was established by the defendants exercising their right to purchase the building of this case. In light of the records, the court below's findings of fact and judgment is justifiable, and there is no error of law by misapprehending the legal principles as to the ownership of new building and alteration as alleged in the grounds for appeal.

3. Judgment on the third ground for appeal

A. As the duration of a land lease contract for the purpose of owning a building expires, when the owner of a building on the ground exercises his/her right to purchase against the lessor under Article 643 of the Civil Act, the purchase price of the building refers to the market price assessed under the current condition of the building as at the time of exercising the right to purchase, comprehensively taking into account the location of the building in addition to its own price and the various circumstances of surrounding land (see Supreme Court Decision 87Meu390, Jun. 23, 1987).

The lower court rejected the Plaintiff’s assertion regarding the calculation of the purchase price of the building in this case, namely, that the cost of removal of the existing building should be deducted from the market price of the building in this case, and determined that the cost of removal, which is a part of the building, should be included in the purchase price, is reasonable as long as the Plaintiff consented to the new construction of the building in this case. However, if the right to purchase a ground object under Article 643 of the Civil Act is exercised, the same effect as a sales contract was concluded between the lessor and the lessee at the time of exercising the right to purchase the building on the leased site, and the lessor does not have the duty to compensate all the costs incurred by the lessee for the new construction of the existing building, including the cost of removal of the existing building, on the ground that the cost of removal of the existing building is part of the

In addition, considering the market price appraisal result of the non-party in the first instance trial and the fact-finding result of the above appraiser in the first instance court, the above appraiser calculated the construction cost per square meter of the building at the time when the purchase right of the building in this case was exercised, and then calculated the market price of the building by means of multiplying the building area. In calculating the market price of the building, although the construction cost required for the new construction is an important factor in calculating the market price of the building, it should be taken into account the location of the building and various circumstances of the surrounding land in addition, and if the market price of the building is appraised based on the construction cost as above, the market price of the building should have been calculated by taking into account the price ratio corresponding to the actual passage for the total interior training of the building, and there is no s

Ultimately, the judgment of the court below on the purchase price of the building of this case shall be deemed to have mistakenly recognized facts in violation of the rules of evidence or to have committed an unlawful act that affected the conclusion of the judgment by misunderstanding the legal principles on the market price calculation of the building. The ground of appeal pointing this out

B. In a building subject to a claim for purchase under Article 643 of the Civil Act, the lessee’s ownership of the building on the leased land and constructed according to its necessity, which includes any appurtenances or facilities attached thereto, which can not be easily separated from the building and give objective convenience in using the building. However, unlike this, it should be deemed that the object or facilities installed by the lessee for the special purpose or business of the lessee does not constitute such object or facilities.

Therefore, in calculating the purchase price of the building of this case due to the lessee's exercise of the lessee's right to purchase, the court below erred by misapprehending the legal principles as to the lessee's object of the right to purchase, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

C. Although the court below acknowledged that the Defendants consented to the removal of the existing building, there is no proof that the Defendants made compensation for the removal of the existing building even after examining the record, so the amount equivalent to the price of the existing building cannot be deducted from the purchase price of the building in this case. The allegation in the grounds of appeal on this part is without merit.

4. Judgment on the fourth ground for appeal

With respect to land lease for the purpose of owning a building, the amount of unjust enrichment to be returned by the lessee after the termination of the lease contract is equivalent to the rent, and the amount equivalent to the above rent is the actual rent at the time of unjust enrichment. Therefore, the court below's decision that the amount of unjust enrichment cannot be calculated on the basis of the amount equivalent to the rent in the absence of the deposit, is justifiable. However, since the termination of the above lease contract, i.e., the lease deposit of this case after March 20, 200, up to the expiration of all due to the deduction of overdue rent and unjust enrichment, the amount of unjust enrichment is equivalent to 5 million won per month of the contract of this case, which is the rent of this case (the amount of unjust enrichment during the above period shall be 6,84,530 won per month, which is the actual rent of this case).

5. Judgment on the fifth ground for appeal

The court below held that the defendants agreed with the plaintiff on October 27, 199 to pay the tax imposed on the land and building of this case, but the property tax on the land of this case of 2001 was imposed after the termination of the lease agreement of this case, and therefore, the defendants are not liable to pay it. According to the records, this judgment of the court below is justified and there is no error of law of misunderstanding of facts due to violation of the rules of evidence as alleged in the grounds of appeal.

6. Therefore, the part of the judgment of the court below against the plaintiff as to the counterclaim is reversed, and that part of the case is remanded to the court below. The remaining appeal by the plaintiff is dismissed. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)