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(영문) 대법원 1995. 7. 14. 선고 94다15318 판결
[부당이득금][공1995.8.15.(998),2772]
Main Issues

(a) Where one of the co-owners leases real estate without the consent of another co-owner, the scope of unjust enrichment to be returned;

(b) The case affirming the judgment of the court below on the ground that where deposit exists for lease, the amount equivalent to the interest rate of time deposit for deposit shall be the rent equivalent thereto;

Summary of Judgment

A. If one of the co-owners of the real estate leases the real estate to another person without the consent of the other co-owners, he/she is obligated to return the portion exceeding his/her share out of profits from the lease without any legal ground. In such cases, the scope of return is the amount equivalent to the rent due to the lease of the real estate, and if the contents of the lease are unregistered or there is any deposit, the amount equivalent to the interest on the deposit money or the deposit money falls under the rent or the trust fee.

(b) The case affirming the judgment of the court below which calculated interest at the rate of one-year fixed deposit interest rate as stipulated in tax-related Acts on the ground that the provisions of tax-related Acts on the deemed rent (Article 29 (1) of the Income Tax Act and Article 58 of the Enforcement Decree of the same Act, etc.) cannot be applied or applied mutatis mutandis to the calculation of the amount equivalent to the interest on the rent in the event that the lease has a deposit for the lease, but where the lease period is at least one year, the amount calculated at the rate of one-year fixed deposit interest rate of the city bank can be acquired naturally,

[Reference Provisions]

Articles 741, 748 of the Civil Act, Article 29(1) of the Income Tax Act, Article 58 of the Enforcement Decree of the Income Tax Act

Reference Cases

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Gyeong-soo et al., Counsel for plaintiff-appellant)

Plaintiff-Appellee

Plaintiff 1 and 3 others, Attorneys Yoon Sung-won et al., Counsel for the plaintiff-appellant-appellee)

Defendant-Appellant

Defendant

Judgment of the lower court

Seoul High Court Decision 93Na8629 delivered on January 21, 1994

Text

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

Reasons

We examine the grounds of appeal.

1. According to the reasoning of the judgment of the court below, the court below cited the judgment of the court of first instance, and held that the defendant, upon the lease of the real estate owned by the plaintiffs and the defendant to the non-party company and the defendant's possession of the real estate alone with the payment of the rent, the defendant made unjust enrichment according to the plaintiffs' share ratio among them. Thus, the court below held that the defendant is obligated to return the real estate of this case to the plaintiffs. According to the result of the fact-finding on the non-party tax office, the defendant can find the fact that the real estate of this case was leased from April 14, 198 to March 31, 192 and included the rent equivalent to monthly and deemed rent in the amount of rent. Since the deemed rent under Article 29 of the Income Tax Act and Article 58 of the Enforcement Decree of the Income Tax Act are presumed to be a premise that the amount of deemed rent calculated based on

2. If one of the co-owners of the real estate leases the real estate to another without the consent of the other co-owners, he/she is obligated to return the excess of his/her share out of profits from the lease without any legal ground. In such cases, the scope of return is the amount equivalent to the rent due to the lease of the above real estate (see Supreme Court Decision 191Da23639, Sept. 24, 191; Supreme Court Decision 91Da23639, Sept. 24, 191). If the contents of the lease are unregistered or there is any deposit, the amount equivalent to the interest on the deposit or the deposit shall be deemed to fall

Meanwhile, in calculating the amount equivalent to the interest, the provisions of the tax law on deemed rent (Article 29(1) of the Income Tax Act and Article 58 of the Enforcement Decree of the same Act, etc.) cannot be applied or applied mutatis mutandis as they are. However, in the event that the lease period exceeds one year, the amount calculated by the interest rate for a term deposit of one year in a commercial bank may be naturally acquired even if the lessor did not have any special talent or effort, and therefore, the amount calculated by the interest rate for a term deposit of one year in a commercial bank, such as

In the same purport, the judgment of the court below that calculated the Defendant’s rental income by neglecting the amount equivalent to the deemed rent in the monthly rent is justifiable, and there is no error in the misapprehension of legal principles as to the scope of unjust enrichment. The argument is without merit.

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Yong-sik (Presiding Justice)

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