[1] The meaning of "Possession" in the lawsuit for the recovery of possession, and the elements for recognizing "Possession" in the indirect possession

[2] In a case where Gap et al. attached a warning to Gap et al. on the door of the building owned by Eul et al. and the entrance, etc. of the latter part of the building "the building occupied by Gap et al., in custody, and the second floor of the building directly occupied by Eul et al. and the lessee Byung et al. who concluded a lease agreement with Eul et al., the case holding that the judgment below which admitted Gap et al.'s claim for recovery of possession by recognizing Gap et al. was erroneous

[1] A possessor may demand the return, etc. of an article when he/she was deprived of possession (see Article 204(1) of the Civil Act). Such a lawsuit for the recovery of possession is exempted only from the possession at the time when he/she asserts that he/she was deprived of possession. Here, the possession refers to the objective relationship in which the article belongs to a person’s factual control under the social norms, and the possession refers to the objective relationship in which the article is deemed to belong to a person’s factual control. In order to have de facto control, the possession does not necessarily mean the physical and practical control, but should be determined in conformity with the concept of society by taking into account the time and spatial relationship between the article and the person, the principal right relationship, and the possibility of excluding others’ control. The possession of the lawsuit for the recovery of possession includes not only the direct possession, but also the indirect possession, but also a certain legal relationship between the indirect possessor and the person who directly occupies, i.e., the direct possession relationship is recognized.

[2] In a case where Gap et al. attached a warning to "A et al. are occupied, detained, and the second floor of the building was directly occupied and the other part was directly occupied by Byung et al. who concluded a lease agreement with Eul, the case holding that the court below erred in the misapprehension of legal principles as to the possession and possession relationship, which is the elements for the establishment of an indirect possession, on the ground that Gap et al. was not a basis for recognizing the possession and possession relationship between Byung et al. and Byung, since the person who was directly occupied Byung et al., in light of all the overall circumstances, the above lease agreement cannot be a basis for recognizing the possession and possession relationship between Eul et al., and Gap et al. were involved in the management of the building.

[1] Articles 192 and 204(1) of the Civil Act / [2] Articles 192 and 204(1) of the Civil Act

[1] Supreme Court Decision 95Da8713 delivered on August 23, 1996 (Gong1996Ha, 2809)

Plaintiff 1 and four others (Law Firm Shinsung, Attorneys Lee Jong-soo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Jeong, Attorneys Lee Na-young, Counsel for defendant-appellant)

Busan High Court Decision 2010Na7805, 7812 decided July 5, 2011

The part of the judgment of the court below against the defendant regarding the remaining part of the building of this case excluding the part of the second floor directly occupied by the plaintiffs is reversed, and this part of the case is remanded to Busan High Court. The defendant's remaining appeal is dismissed

The grounds of appeal are examined.

1. Part of the second floor of the instant building for which the lower court acknowledged direct possession by the Plaintiffs

According to the reasoning of the judgment below, the court below acknowledged the fact that the plaintiffs directly occupied part of the second floor of the building of this case through the plaintiff 2, and the defendant was deprived of the plaintiffs' possession, and determined that the defendant has a duty to deliver it to the plaintiffs who seek the return of part of the second floor of the building of this case based on the right to claim the recovery of possession.

In light of the relevant legal principles and records, the judgment of the court below is just, and there is no violation of the rules of evidence or misapprehension of legal principles as alleged in the grounds of appeal.

2. The remaining parts of the building of this case for which the plaintiffs' indirect possession was recognized by the court below

If an occupant has been deprived of possession, he/she may demand the return, etc. of the article (see Article 204(1) of the Civil Act). In a lawsuit for recovery of possession, only is examined as to whether he/she occupied the article at the time he/she asserts that he/she retired from possession. Here, the term "Possession" refers to the objective relationship in which the article belongs to the factual control of the person in terms of social norms, and in order to have de facto control, it does not necessarily mean that the article is physically and practically controlled, but it shall be determined in conformity with the concept of society by taking into account the time and spatial relationship with the article and the possibility of excluding others' control (see Supreme Court Decision 95Da8713, Aug. 23, 1996).

In addition, the possession in the lawsuit for the recovery of possession includes not only the direct possession but also the indirect possession. However, in order to recognize the indirect possession, there is a need for a specific legal relationship between the indirect possessor and the person who directly occupies, i.e., the direct possessor's right to claim the return of his/her possession.

According to the reasoning of the judgment below, the court below acknowledged that the plaintiffs attached a warning on the entrance, etc. of the door and the rear door of the building of this case to the effect that "the plaintiffs are prohibited from entering and leaving the building in custody." The non-party, through consultation with the non-party, the non-party, the owner of the building of this case, was leasing part of the remaining part of the building of this case except for the part of the second floor directly occupied by the plaintiffs, or indirectly occupying it by managing the building of this case by receiving public charges, management expenses, etc. from the lessees.

However, in light of the above legal principles, it is difficult to accept the judgment of the court below as it is for the following reasons.

In order for the Plaintiffs to be recognized as indirect possession of the leased part of the instant building to a third party, the relationship of possession between the Plaintiffs and the lessees, who are direct occupants, should be recognized. However, according to the record, the lease contract with the lessees of the instant building can be known to the fact that it was concluded between the Plaintiff, Inc., Ltd., which was the owner at the time. Therefore, a person who has the right to claim the return of the leased part, who is the direct occupant, under the lease contract, shall be deemed to be a corporation only. Therefore, the lease contract with the lessees cannot be the basis for recognizing the relationship of possession and possession between the Plaintiffs and the direct occupant. Moreover, the above circumstances indicated by the lower court based on indirect possession are merely the fact that the Plaintiffs participated in the management of the instant building, as well as the fact that the Plaintiffs participated in the management of the building

Therefore, the lower court should have determined whether to recognize indirect possession through a concrete hearing on the part leased to a third party among the instant building, such as what is the legal grounds for recognizing an occupancy-out relationship between the Plaintiffs and the lessees, and what is the legal relations between the Plaintiffs and the lessor under the lease agreement.

Nevertheless, solely based on the circumstances indicated in its holding, the lower court concluded that the remainder of the building in this case, other than the part of the second floor directly occupied by the Plaintiffs, is indirectly occupied by the Plaintiffs, and accepted the Plaintiffs’ claim for recovery of possession. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment requirements for indirect possession, and failing to exhaust all necessary deliberations. The allegation contained in the grounds of appeal on this point is with merit.

3. Conclusion

Therefore, among the judgment of the court below, the part against the defendant as to the remaining part of the building of this case excluding the part directly occupied by the plaintiffs, is reversed, and that part of the case is remanded to the court below for a new trial and determination. The defendant's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Poe-dae (Presiding Justice)