[1] In a case where the secured party uses the land owned by a third party, which is not a secured party, as a collateral, whether the use of a value right that does not involve a real possession can be deemed as having a real profit for the secured party (negative), and whether the possession of the third party was hindered (negative)

[2] In a case where Gap leased part of the building to Eul, but terminated the lease contract on the ground of delinquency in rent, and even after the notice of termination is delivered, Byung, the creditor of Eul, who occupied and used the leased object, provided all rights to the restaurant located in the leased object from Eul as a security for transfer, the case holding that Byung, the mortgagee, was liable to return unjust enrichment for the possession of the leased object, on the ground that Byung, as the direct possessor of the leased object, was recognized, was an indirect possessor of the leased object, and Byung was liable to return unjust enrichment for the possession of the leased object

[1] Article 741 of the Civil Code / [2] Article 741 of the Civil Code

[1] Supreme Court Decision 80Da979 delivered on January 13, 1981 (Gong1981, 13580)

Plaintiff (Attorney Jeon-soo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Jae-gu, Attorneys Gangseo-gu et al., Counsel for the defendant-appellant)

Daejeon District Court Decision 2017Na104451 Decided February 21, 2018

The part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. The lower court determined that the Defendant, as the indirect possessor of the leased object of this case, was liable to return unjust enrichment from his possession to the Plaintiff, on the ground that the Defendant, the mortgagee, was found to have occupied the Nonparty, who is the direct possessor of the leased object of this case, as the direct possessor of the leased object of this case.

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. Even if the secured party used the land owned by a third party, which is not a secured party, as a security, it cannot be said that there was any real profit for the secured party, and it cannot be said that there was any real profit for the secured party, and that there was any interference with the real possession of the third party (see Supreme Court Decision 80Da979 delivered on January 13, 1981).

B. The reasoning of the lower judgment and the evidence duly admitted and examined by the lower court reveal the following.

1) On January 31, 2009, the Plaintiff leased the instant leased object to the Nonparty by setting the lease deposit amount of KRW 50 million, monthly rent of KRW 2 million, and the lease term from March 1, 2009 to February 28, 201, but the lease term was renewed by setting the rent of KRW 2420,00 as monthly rent around February 201, and the lease term from March 1, 2013 to February 28, 2015.

2) On August 4, 2014, the Plaintiff expressed to the Nonparty an intention to terminate the lease agreement on the leased object of this case on the grounds of the non-party’s delinquency in rent. The notification of termination reached the non-party around that time.

3) On April 16, 2015, the Defendant issued to the Nonparty a letter of undertaking that he/she would be provided with all rights to the restaurant located in the leased object of this case as a security for transfer on the part of the Nonparty, who owns a claim of KRW 250 million against the Nonparty.

4) The Nonparty occupied and used the leased object of this case, and transferred the leased object of this case to the Plaintiff on November 8, 2016.

C. Examining such factual relations in light of the legal principles as seen earlier, the Nonparty, a debtor, provided the right of lease, etc. on the leased object of this case for the Defendant, a creditor. The Nonparty is the Nonparty, who occupied the leased object of this case, and the Defendant was only in the position of the mortgagee, and the Defendant did not directly use the leased object of this case, so it cannot be deemed that there was any real benefit to the Defendant, which is only the mortgagee, and it cannot be deemed that there was any damage to the Plaintiff.

D. Nevertheless, the lower court determined that the Defendant is obligated to return unjust enrichment from possession to the Plaintiff solely on the fact that the Defendant, who is the direct occupant of the leased object of this case, was the direct occupant of the leased object of this case, as the direct occupant. In so determining, the lower court erred by misapprehending the legal doctrine on the establishment of the obligation to return unjust enrichment, thereby adversely affecting the conclusion of the judgment. The allegation contained in

3. Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)