[1] Where a lessee exercises a right to demand purchase of a ground object under Article 643 of the Civil Act, whether the lessee’s obligation to return unjust enrichment for the use of the site before receiving the purchase price from the lessor (affirmative)

[2] The case holding that the amount of unjust enrichment to be refunded after the termination of a lease contract shall be the amount equivalent to the actual rent at the time of the re-calculated unjust enrichment in case where the agreed fee for the site lease for the purpose of owning a building differs substantially from the actual rent

[1] In the lease of a site for the purpose of owning a building or any other structure, even if the lessee may refuse to deliver the site by the time he/she receives the purchase price from the owner of the site who is the lessor after exercising the purchase right under Article 643 of the Civil Code, the amount equivalent to the rent of the site shall be returned as unjust enrichment for which he/she has continuously occupied and used the site through the occupation and use of the site, even though he/she may refuse to pay the purchase price

[2] The case holding that the amount of unjust enrichment to be refunded after the termination of a lease contract shall be the amount equivalent to the actual rent at the time of the re-calculated unjust enrichment in case where the agreed fee for the site lease for the purpose of owning a building differs substantially from the actual rent

[1] Articles 643 and 741 of the Civil Act / [2] Articles 643 and 741 of the Civil Act

[1] Supreme Court Decision 92Da22114 delivered on December 24, 1992 (Gong1993Sang, 593) Supreme Court Decision 95Da15728 delivered on March 14, 1997 (Gong197Sang, 1073)

Plaintiff (Law Firm Squa, Attorneys Park Jong-dong, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Samyang Law Office et al., Counsel for the defendant-appellant)

Seoul High Court Decision 98Na2299 delivered on September 17, 1999

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

1. On the violation of the principle of pleading

The lower court determined that Defendant 2, who was the party to the instant lease agreement, led to the conclusion of the instant lease agreement with the Plaintiff and the construction of the instant building by sub-leaseing the instant building to another person, is the actual party to the instant lease agreement. As long as the term of the instant lease agreement expires upon the premise that Defendant 2, who was jointly with Defendant 1, was the actual party to the instant building, the Defendants shall newly construct the instant building under the Plaintiff’s name and use and profit-making the instant building on the instant site and conclude the re-lease agreement prior to the other party after the term of the lease expires. However, if the re-lease agreement is not concluded, the Defendants shall waive their rights to the instant building and remove its ownership, and deliver the instant site to the Plaintiff pursuant to the agreement to deliver it to the Plaintiff. The lower court’s aforementioned determination is justifiable in its determination that the Defendants violated the Plaintiff’s principle of direct possession, regardless of whether the direct possession or possession is the direct possession.

2. As to extension of the lease term

The court below rejected the plaintiff and the defendants' initial lease contract with three years of lease term as to the site of this case, but it concluded a new lease contract with ten years from March 30, 198, which became null and void between the plaintiff and the defendant, and the lease term has not been terminated until the expiration of the lease term. In light of the records, the above decision of the court below is just and there is no other evidence to acknowledge it without any other evidence corresponding to the defendants' argument, and there is no violation of the rules of evidence against the rules of evidence, and there is no error of law which misleads the facts against the rules of evidence. Further, if the plaintiff agreed to extend the lease term of 127.54 square meters for the remaining 10 months on May 1, 1990, with the plaintiff's initial lease term of 127.4 square meters, 14.08 square meters on underground floor, 71.90 square meters, and 262.3 square meters on the ground that the plaintiff and the defendants continued to extend the lease term of this case without any longer than 13 years prior to the renewal.

3. As to the appraisal of the fee

In light of the records, the court below's appraiser did not consider that there was no adequate rental example to adopt the so-called rental comparison method at the time of the appraisal of the rent of the site of this case, and calculated the rent pursuant to the reasonable calculation method. It cannot be said that there was any error in the selection of the appraisal method, and there was no illegality in the process of calculating the rent of the site of this case on the basis of the basic price and expected interest rate.

Meanwhile, according to the appraisal report (record 922-923), the appraiser of the court below can find out the fact that the market price of the building of this case was appraised considering the interior interior interior, interior interior, facilities, etc. of the building of this case constructed by the defendants at the expense of the defendants. Since the defendants' assertion cannot be deemed as attached to the building and the collection and collection can be made by the defendants, it shall not be considered in the market price appraisal of the building of this case.

Ultimately, the argument on this part of the grounds of appeal is rejected as it is without merit.

4. As to the misapprehension of legal principle as to unjust enrichment

In the case of a site lease for the purpose of owning a building or other structure, even though the lessee may refuse to deliver the building, etc. on the ground after exercising the right to demand purchase under Article 643 of the Civil Act with respect to the building, etc., until he receives the purchase price from the owner of the site who is the lessor, the lessee is obligated to return the amount equivalent to the rent for the site as unjust enrichment that has continuously occupied and used the site through possession and use of the building, etc. (see Supreme Court Decision 92Da22114 delivered on December 24, 1992). In the case of a return of unjust enrichment, the amount of the unjust enrichment to be returned should be the amount equivalent to the rent, unless there are any special circumstances. However, the lower court’s determination that the lease contract for the building in this case was not concluded yet to be more reasonable and reasonable, and that there was no difference between the agreement and the agreement to reimburse the land in question and the agreement to return the land to the Plaintiff, which is the basis of the agreement that did not change the amount of the rent at the time.

5. Therefore, all appeals are dismissed, and the 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 Son Ji-yol (Presiding Justice)