The meaning of “when a person loses his/her capacity” under Article 749(2) of the Civil Act / Whether the owner may claim against the possessor, etc. the return of the article and the return of the profit acquired by using the article without title, and on the premise that the claim for return of the article will be accepted, may claim the return of the profit of use for the period after the lawsuit

A bona fide possessor shall acquire the negligence of an object in good faith (Article 201(1) of the Civil Act), and the possessor is presumed to have occupied in good faith (Article 197(1) of the Civil Act), but even if a possessor in good faith has lost in an action on this right, he/she shall be deemed to have been an possessor in bad faith from the time the action was brought to him/her (Article 197(2) of the Civil Act). In the same purport, if a bona fide beneficiary has lost, he/she shall be deemed to have been a bad faith beneficiary from the time the action was brought to him/her (Article 749(2) of the Civil Act). If a bona fide beneficiary returns any loss with interest added thereto, he/she shall compensate for such loss (Article 748(2) of the Civil Act). Here, “when a person in bad faith has failed” means that the possessor or beneficiary becomes final and conclusive to have the effect of deeming the possessor or beneficiary in bad faith as the possessor, etc., and it does not mean that the owner’s claim under the premise of return of interest.

Article 197 of the Civil Act; Article 201(1) of the Civil Act; Article 748(2) of the Civil Act; Article 749(2) of the Civil Act

Plaintiff (Attorney Jeon Soo-soo, Counsel for the plaintiff-appellant)

Defendant (Attorney Choi Jong-soo, Counsel for the defendant-appellant)

Jeonju District Court Decision 2015Na2334 decided April 7, 2016

The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to the Jeonju District Court. The remaining grounds of appeal by the plaintiff and the defendant are all dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The reasoning of the first instance judgment cited by the lower court reveals the following facts.

A. On June 22, 2010, the Plaintiff completed the transfer of ownership on the instant automobile.

B. On October 27, 2013, the Plaintiff’s wife Nonparty 1 delivered the instant automobile and the key and registration certificate to Nonparty 2, who worked in the used vehicle dealer.

C. On October 28, 2013, Nonparty 3, who operated the instant motor vehicle transaction company with the trade name “○○ ○○”, completed the ownership transfer registration on the instant motor vehicle, and the Defendant, the head of Nonparty 3, who was Nonparty 3, possessed the instant motor vehicle after completing the ownership transfer registration on February 3, 2014.

2. As to the Defendant’s ground of appeal

Based on the above factual basis, the lower court rejected all the Defendant’s assertion that: (a) the ownership transfer registration of the instant automobile in Nonparty 3 was made on the basis of the vehicle transfer certificate without any evidence to acknowledge the authenticity; and (b) there was no other agreement between the Plaintiff and Nonparty 3 on the instant automobile; (c) the ownership transfer registration and the ownership transfer registration made on the basis of Nonparty 3’s transfer registration in the name of the Defendant was null and void; and accordingly, (d) the Defendant was liable to implement the procedure for the ownership transfer registration and deliver the instant automobile to the Plaintiff on the ground of the restoration of the true name. Furthermore, the lower court rejected all the Defendant’s assertion that Nonparty 2 was liable to act as an expressive agent to the Plaintiff even if

In light of the records, the above judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of the intent of delegation of the right to dispose of the motor vehicle of this case, or in violation of the rules of evidence, lack

3. Plaintiff’s ground of appeal

A. The subject claim is an effect of impossibility of performance, and is an interpretation that is recognized separately from the obligee's right to claim compensation for compensatory damages and the right to cancel the contract (see Supreme Court Decision 92Da4581, May 12, 1992, etc.). Since the claim for the delivery of the instant vehicle has the nature of a real right claim as the right to claim for the return of owned property premised on the premise that the Plaintiff is the owner, there is no room to recognize the subject claim recognized as the effect

In light of the above legal principles and records, the court below was just in rejecting the plaintiff's claim seeking the target claim against the impossibility of delivery execution of the automobile of this case, and there was no error of misapprehending the legal principles on the target claim

B. According to the reasoning of the judgment below, the court below rejected the Plaintiff’s claim seeking return of unjust enrichment on the ground that the Defendant occupied and used the instant automobile from February 3, 2004, on the ground that there is no evidence to prove that the Defendant illegally occupied the instant automobile or was an occupant in bad faith.

However, the possessor in good faith shall acquire the fruits of the object in good faith (Article 201(1) of the Civil Act), and the possessor is presumed to have occupied in good faith (Article 197(1) of the Civil Act). However, even if the possessor in good faith has lost in an action on this right, the possessor in bad faith shall be deemed to have been an possessor in bad faith from the time the action was brought (Article 197(2) of the Civil Act). In the same purport, if the possessor in good faith has lost the beneficiary in bad faith, the possessor in bad faith shall be deemed to have been the beneficiary from the time the action was brought (Article 749(2) of the Civil Act). If the possessor in bad faith returns any loss with interest added thereto (Article 748(2) of the Civil Act). Here, the term “when the possessor in bad faith” means that the possessor in bad faith or beneficiary shall be deemed to have the effect of deeming the possessor in bad faith or beneficiary, and it does not mean that the possessor in good faith shall not be permitted to claim the return of interest after the claim.

However, the court below accepted the Plaintiff’s claim for delivery of the instant automobile, which was premised on the Plaintiff’s possession of the instant automobile. According to the records, the Plaintiff added the Plaintiff’s claim for return of unjust enrichment due to the Defendant’s possession and use of the instant automobile to the court below. Therefore, the court below should have deliberated and decided on whether the Defendant becomes a malicious occupant or beneficiary in accordance with the above legal principles, whether the obligation to return unjust enrichment was established, and the scope and amount thereof, etc., but the court below rejected the Plaintiff’s claim for this portion solely on the ground that there was no evidence to acknowledge the Defendant as an occupant in bad faith without examining these points. In so doing, the court below erred by misapprehending the legal principles on deemed occupant or beneficiary’s bad faith, and the Plaintiff

4. Therefore, the part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal by the plaintiff and the defendant's appeal are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Kim Shin (Presiding Justice)