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(영문) 대법원 2011. 12. 13. 선고 2009다5162 판결
[출입금지등][공2012상,119]
Main Issues

[1] In a case where the possessor claims the return of the article in possession to the person who restored it, whether the period during which the possessor claims the return of the article in possession or the beneficial cost becomes due (affirmative)

[2] In a case where Gap church pastor Eul decided to leave the religious order from Eul's religious assembly and established an independent church which is an independent church, and thereafter the previous church was occupied and used by Byung church, but Gap church sought a prohibition of entry into and exit from the church building, etc. against Eul's religious church pastors and roads, the case holding that Gap church's claim is not different from Eul's claim for return of the church building, etc., and therefore Gap church's claim for prohibition of entry into and departure from Eul's religious order, and therefore the period during which Gap church's claim for prohibition of entry into and departure from Eul et al. arrives

[3] Matters to be asserted and proved by the other party in order to reject the claim of lien based on the necessary cost and beneficial cost for the possession

[4] The case holding that Eul et al., et al. may oppose the claim of Gap church on the ground of the right of retention on the basis of the right of retention for necessary expenses and beneficial expenses, in case where Eul decided to leave the religious order at the Gap church's religious assembly and established the independent church of Eul, and thereafter the previous church building was occupied and used by Byung, but Gap church claimed the prohibition of access to the church building, etc. against Eul et al.

[5] In a lawsuit claiming the delivery of goods, where the defendant's right of retention defense is cited, whether the defendant shall order the delivery of goods in repayment and redemption of claims arising in relation to the goods (affirmative)

[6] The case holding that in case where Gap church pastor Eul decided to leave the religious order from Eul's religious assembly and established the independent church Byung, and thereafter the previous church building was occupied and used by Byung Byung, but Gap church claimed prohibition of entry into and exit from the church building, etc. against Byung's church pastor and Eul, the case holding that since Byung church who is not a party to the lawsuit cannot accept Gap church's claim against Eul, etc. due to the necessity expenses and beneficial expenses and repayment, it cannot be viewed that the court below did not render a decision of repayment execution despite receiving Eul's right of retention claim

Summary of Judgment

[1] Article 203(1) and (2) of the Civil Act provides that the possessor may demand reimbursement of expenses or beneficial expenses incurred in preserving or improving the occupied object to the “when the possessor returns the possessed object.” As such, the possessor’s right to demand reimbursement may only be exercised when he/she receives a claim for the return of the possessed object from the person to the person to be restored, and the due date arrives.

[2] In a case where Gap church pastor Eul decided to leave the religious order from Eul's religious assembly and established an independent church Byung, and thereafter Eul church occupied and used the previous church's building, but Gap church claimed against Byung church pastor Eul and Eul for the prohibition of access to the church building, etc., the case holding that Byung church's claim for the prohibition of access to the church is not beneficial, since Byung church's right to demand the return of necessary expenses and beneficial expenses incurred for the extension of the church building, etc. is established in order for Byung church to establish a right of retention to guarantee the right to demand access to the church building, Byung church which is the occupying party of the church building, etc., and Eul et al., the other party who sought the prohibition of access to the church building, etc., play a central role in daily activities such as worship's own purpose and especially Eul's representative status, it is necessary to file a claim against Eul et al. for the prohibition of access to the church, etc., but it is not different from Byung church's right to demand the return of the church building, etc.

[3] The possessor of an article is presumed to have occupied the article in good faith, peace, and public performance with his own will, and the possessor’s right to exercise the right against the article is presumed to have been lawfully owned (Article 197(1) and Article 200 of the Civil Act). Therefore, in order to reject the claim of a right of retention based on the necessary cost and beneficial cost reimbursement regarding the article in possession, the possessor must have the other party’s assertion and proof as to the grounds that the possession was commenced due to the tort, or that the possessor knew, or was unable to know, that he did not have knowledge

[4] The case holding that in case where Eul et al. brought an action against Eul et al. for the prohibition of access to church buildings, etc., and Eul et al. for the prohibition of access to the church buildings, etc., although Eul et al. decided to leave the religious order at the Gap church's religious assembly and established the independent church Byung, Eul et al. for the withdrawal of the religious order from the religious order, Eul et al., but Eul et al. claimed the prohibition of access to the church buildings, etc. against Eul et al., the use of the custody of the right of retention belonging to the associate church as a member of the church Byung et al. is allowed not only to exercise his legitimate authority but also to use it as necessary for the preservation of the custody, and such use does not require a resolution of the general meeting unlike the management and disposition of the collective ownership, Eul et al., based on the necessity

[5] In a lawsuit claiming the delivery of goods, where the defendant's right of retention defense is cited, the defendant shall be ordered to deliver the goods in return for the repayment and redemption of the claim arising from the goods.

[6] In a case where Gap church pastor Eul decided to leave the religious order from Eul's religious assembly and established an independent church Byung, and the previous church building was occupied and used by Byung Byung, but Gap church claimed prohibition of entry into the church building, etc. against Eul's pastors and roads, the case holding that in a case where Gap church et al., as a possessor of the church building, etc., sought prohibition of entry into and exit from the church building, etc., the right holder entitled to receive necessary expenses and beneficial expenses under Article 203 (1) and (2) of the Civil Act as a possessor of the church building, etc., can not accept the claim of Gap church against Eul et al., which is not a party to the lawsuit, in case where Eul et al., seeks prohibition of entry into and exit from the church building, etc., which is not a party to the lawsuit, and therefore, the court below did not render a decision of repayment execution even with Eul's right of retention

[Reference Provisions]

[1] Article 203 (1) and (2) of the Civil Act / [2] Articles 203 (1) and (2), and 320 (1) of the Civil Act / [3] Articles 197 (1), 200, 203, and 320 of the Civil Act, Article 288 of the Civil Procedure Act / [4] Articles 275 (1), 276, 278, and 324 (2) of the Civil Act / [5] Article 320 of the Civil Act / [6] Articles 203 (1) and (2), and 320 (1) of the Civil Act

Reference Cases

[1] Supreme Court Decision 69Da726 delivered on July 22, 1969 (No. 17-2, 360), Supreme Court Decision 93Da30471, 3048 delivered on December 28, 1993 (Gong1994Sang, 522) / [3] Supreme Court Decision 66Da600, 601 delivered on June 7, 196 (No. 14-2, 66) / [5] Supreme Court Decision 69Da1592 delivered on November 25, 196 (No. 17-4, 91)

Plaintiff-Appellant

The Korean Association of the Korean Association of the Korean Association of the Korean Association of the Korean Association of the Korean Association of the Korean Association of the Korean Association of the Japanese Association of the Japanese Association.

Defendant-Appellee

Defendant 1 and 15 others (Law Firm Gyeong & Yang, Attorneys Soh Tae-ho et al., Counsel for the defendant-appellant)

Judgment of the lower court

Seoul High Court Decision 2007Na104739 decided December 19, 2008

Text

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

Reasons

1. As to whether the right of retention of the church belonging to the Defendants is established

A. Comprehensively taking account of the evidence adopted by the court below, Defendant 1, who was in office as the president of the previous church and the assistant church of this case (hereinafter referred to as the "previous church"), is a branch church belonging to the Seoul Association of the Korea War since its establishment on April 15, 1969, which acquired the church building and the church's house (hereinafter referred to as the "association's building, etc.") with the members' contribution, used the church's worship and the church's business affairs, but at the time of its acquisition, the name in the register is the name of the foundation in the name of the Seoul Association of the Korea Teachers' Association (hereinafter referred to as the "Foundation"), the Foundation of the Korea Teachers' Association (hereinafter referred to as the "Foundation"), which was in office as the chairman of the previous church and the assistant church of this case who had been in office as the defendant 1, who had been in office as the representative of the church of this case, to leave the previous church's association after the formation of the association's independent church and the defendant church's independent church's remaining after the church's resolution of this case.

In light of the records, the above fact-finding and judgment of the court below are justified.

B. Article 203(1) and (2) of the Civil Act provides that the possessor may claim reimbursement of the necessary or beneficial expenses incurred in preserving or improving the occupied object to the “when the possessor returns the possessed object.” Thus, the possessor’s right to demand reimbursement can only be exercised when he/she receives the return of the possessed object from the restored person, and the due date comes (see, e.g., Supreme Court Decisions 69Da726, Jul. 22, 1969; 93Da30471, 30488, Dec. 28, 1993).

Therefore, in order to establish a lien that guarantees the right to demand reimbursement of the necessary and beneficial expenses incurred in the extension, etc. of the church building, etc. of this case as the time of the original adjudication, the independent church, which is the owner of the church building of this case, shall be recognized as having come due for the payment of the above right to demand reimbursement by receiving a claim for the return of possession

However, as seen earlier, the instant church buildings, etc. are used by the independent church after the resolution of the instant church assembly, and their members, including the Defendants, are deemed to have been used only for the purpose of worship while entering the instant church buildings, etc. as an independent church member with the nature of the non-corporate church. However, according to the reasoning of the judgment of the court of first instance cited by the court below, the six Defendants 16, who are the parties to the instant lawsuit, seeking the prohibition of entry into and departure from the instant church buildings, etc., are the members whose central role in daily activities, such as the worship of the independent church and the head, etc., and in particular, Defendant 1 is the representative of the independent church. Considering this, claiming the prohibition of entry into and departure from the church against the above Defendants is a claim against the Defendants, but the substance of the instant church is not different from claiming the return of the instant church, etc. against the independent church. Therefore, insofar as the Plaintiff filed the instant lawsuit against the Defendants, the Plaintiff’s claim against the Defendants for the prohibition of entry into the instant church, etc.

C. A possessor of an article is presumed to have occupied in good faith, peace, and public performance with his/her own intent, and is presumed to have lawfully owned the right that the possessor exercises in respect of the article in possession (see Articles 197(1) and 200 of the Civil Act). Therefore, in order to reject the claim of a lien based on the necessary cost and beneficial cost reimbursement for the article in possession, the possessor must at least assert the other party’s assertion and proof of the reasons that the possession was commenced due to the tort, or that the possessor knew, or was unaware, of the absence of the right to possess at least due to gross negligence at the time of disbursement of the necessary cost and beneficial cost (see Supreme Court Decision 66Da600, 601, Jun. 7, 196)

In examining the record, it does not seem that the independent church possession of the instant church building, etc. was initiated due to the tort, or the independent church association did not have the right to possess at the time of disbursement of the necessary and beneficial expenses in the decision of the court below, or there is no assertion or proof as to the grounds for recognizing that the independent church possession was not known or was grossly negligent. In the same purport, the court below is just to recognize the establishment of a lien based on the right to demand reimbursement of the necessary and beneficial expenses of the independent church

D. The argument that the lien cannot be established as the right of retention is extended or reconstructed without the consent or approval of the plaintiff church, the independent church association cannot be a legitimate ground for appeal, as it was first conducted in the final appeal.

2. Whether the Defendants can assert the right of retention of an independent church

Property of an association which is not a juristic person is jointly owned by its members (Article 275(1) of the Civil Act), and each member of an association which is not a juristic person may use and benefit from collective ownership as prescribed by the rules, etc. inside the association (Article 276(2) of the Civil Act). Since the provisions of the Civil Act concerning collective ownership apply mutatis mutandis to property rights other than ownership (Article 278 of the Civil Act), the provisions of the Civil Act concerning the use and profit-making of collective ownership are also applicable mutatis mutandis to the right of retention. Meanwhile, the lien holder may use the retained property to the extent necessary for the preservation of the retained property (Article 324(2)

Therefore, the Defendants’ use of the custody of the lien belonging to their quasi-general ownership as a member of an independent church as stipulated in the internal rules shall not only exercise their legitimate authority as a member of an association which is not a juristic person, but also be permitted to use the custody necessary for the preservation of the custody. Such use does not require a resolution of a general meeting, unlike the management and disposition of the collective ownership.

The decision of the court below that the defendants can oppose the plaintiff's claims of this case based on the right of retention of an independent church based on the necessary expenses and the right of reimbursement for useful expenses is just in its conclusion in light of the above legal principles, and there is no violation of law such as misapprehension of legal principles which affected

3. As to the assertion of repayment performance, etc.

A. In a lawsuit claiming the delivery of a thing, where the defendant's right of retention defense is cited, the order to deliver the thing in return for the repayment and redemption of the claim arising in relation to the thing is stated as the ground of appeal (see Supreme Court Decision 69Da1592 delivered on November 25, 1969).

However, as the possessor of the instant church building, etc., who is entitled to receive necessary and beneficial expenses under Article 203(1) and (2) of the Civil Act, is an independent church. Thus, in this case where the Defendants, who are not only part of the members, seek the prohibition of access to the instant church building, etc., and the exclusion of interference with the Plaintiff’s use, the independent church, which is not a party to the lawsuit, may not accept the Plaintiff’s claim against the Defendants in return for the payment of the above expenses. Accordingly, the lower court’s assertion that the failure of the repayment execution decision, while accepting the Defendants’ claim for lien, is unlawful cannot be accepted.

B. The assertion or set-off that the possessor may claim the grant of the repayment period if he exercises his right of recourse for beneficial benefit and reimbursement cannot be a legitimate ground for appeal since all of the arguments raised at the first time in the final appeal.

4. Conclusion

As above, all of the arguments in the grounds of appeal are without merit. It is so decided as per Disposition by the assent of all participating Justices who reviewed the appeal to dismiss the appeal. As such, the costs of appeal are assessed against the losing party.

Justices Park Poe-young (Presiding Justice)

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관련문헌

- 권영준 세밀한 정의를 향한 여정 : 박병대 대법관의 민사판결 분석 법과 정의 그리고 사람:. 박병대 대법관 재임기념 문집(2017) / 사법발전재단 2017

- 사법연수원 민사실무: 2016 Ⅱ 사법연수원 2016

- 법원도서관 사법논집=. 제61집 법원도서관 2015

- 서헌제 교회분열에 관한 대법원 판결의 의의 : 타당성과 현실성을 중심으로 저스티스 통권 제145호 / 한국법학원 2014

- 이재석 유치권 행사의 제한에 관한 판례이론 사법논집 . 제55집 / 법원도서관 2012

- 윤철홍 2011년도 물권법 분야 주요 판례와 그 의미 법학연구 23권 1호 / 충남대학교 법학연구소 2012

- 최수정 유치권과 동시이행의 항변권의 관계 정립을 위한 시론 민사판례연구 39권 / 박영사 2017

- 이재석 유치권의 행사를 제한하는 판례이론에 관한 제언 사법논집 . 제61집 / 법원도서관 2016

- 사봉관 유치권 관련 주요 판례 정리 : 최근 대법원 판례를 중심으로 청연논총 (제9집)사법연수원 교수논문집 / 사법연수원 2012

- 권순형 유치물의 사용에 관한 법률관계 사법논집 . 제54집 / 법원도서관 2012

- 박제인 신탁 비용 지급의무와 신탁종료 시 신탁재산이전의무의 선후 관계 : 약정 자조매각권에 의한 전환 여부를 중심으로 BFL 72호 / 서울대학교 금융법센터 2015

참조판례

- [1] 대법원 1969. 7. 22. 선고 69다726 판결

- 대법원 1993. 12. 28. 선고 93다30471, 30488 판결

- [3] 대법원 1966. 6. 7. 선고 66다600, 601 판결

- [5] 대법원 1969. 11. 25. 선고 69다1592 판결

참조조문

- [1] 민법 제203조 제1항

- 민법 제203조 제2항

- [2] 민법 제203조 제1항

- 민법 제203조 제2항

- 민법 제320조 제1항

- [3] 민법 제197조 제1항

- 민법 제200조

- 민법 제203조

- 민법 제320조

- 민사소송법 제288조 (위헌조문)

- [4] 민법 제275조 제1항

- 민법 제276조

- 민법 제278조

- 민법 제324조 제2항

- [5] 민법 제320조

- [6] 민법 제203조 제1항

- 민법 제203조 제2항

- 민법 제320조 제1항

본문참조판례

대법원 1969. 7. 22. 선고 69다726 판결

대법원 1993. 12. 28. 선고 93다30471, 30488 판결

대법원 1966. 6. 7. 선고 66다600, 601 판결

대법원 1969. 11. 25. 선고 69다1592 판결

본문참조조문

- 민법 제203조 제1항

- 민법 제203조 제2항

- 민법 제197조 제1항

- 민법 제200조

- 민법 제275조 제1항

- 민법 제276조 제2항

- 민법 제278조

- 민법 제324조 제2항

원심판결

- 서울고법 2008. 12. 19. 선고 2007나104739 판결