208Na25210 Removal of building, etc.

○○ (40-years, Males)

Essung simuls

Attorney Won-hoon et al., Counsel for the defendant

○○ (46-years, Males)

Olsan City

Attorney Lee Dong-hoon, Counsel for the defendant-appellant

Suwon District Court Decision 2007Kadan108407 Decided October 23, 2008

June 9, 2009

August 18, 2009

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the defendant.

1. Purport of claim

A. Codefendant A of the first instance trial connects the Plaintiff with each point of (c) the attached table No. 2, 4, 20, 21, 22, 23, 24, and 2 in sequence among the land listed in paragraph (1) of the attached Table No. 1 of the attached Table No. 1, the codefendant A of the first instance trial shall remove each part of the above-mentioned part of the prefabricated type board board board No. 15, 15, 00 m. - 00 00 m. on the ground surface (the inside part which connects each point of 2, 3, 4, and 2 of the attached Table No. 1 of the drawings) to the Plaintiff, and remove each part of the above land No. 11 meters on the ground.

B. The Defendant removes, among the lands listed in paragraph (1) of the attached Table 1, the parts of the attached Table 8, 9, 10, 11, 12, 13, 14, 15, and 8 among the lands listed in paragraph (1) of the attached Table, the Defendant successively connects each of the above points to the Plaintiff (A) of the above sub-paragraph (a) to a single-story board board set of the ground assembly type 103, 104, 16, 17, 18, 19, and 16, 18, 16, 18, 16, 18, and 18, 18, 16, 200, 333, 655, 360, and 90,000,000,000 won for each land from September 1, 208 to September 9, 2009.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Scope of the judgment of this court;

The court of the first instance accepted all of the plaintiff's claims against the co-defendant A (hereinafter referred to as "A") of the first instance trial against the plaintiff, as to the case in which the plaintiff filed a lawsuit for removal of the building and delivery of the land, removal of the building, delivery of the land, and claim for restitution of unjust enrichment against the defendant, and the court of the first instance against the defendant. Accordingly, the defendant only appealed. The scope of the judgment of this court is limited to the plaintiff's claims against the defendant.

2. Facts of recognition;

A. On May 24, 1983, the Plaintiff acquired the ownership of each of the instant lands by completing each registration of ownership transfer on the ground of the inheritance by self-consultation on April 1, 1978, as to the land listed in paragraph (1) of the annexed Table No. 1 (hereinafter referred to as “land No. 1 of this case”) on the ground of self-consultation on April 1, 1978, and as to the land listed in paragraph (2) of the annexed Table No. 2 of this case (hereinafter referred to as “the land No. 2 of this case”) on December 27, 1975.

B. At around 190, the Defendant borrowed each of the instant land from the Plaintiff without setting a time limit, and around that time connects each of the (A) parts on the ground of the instant land with the indication of the annexed drawings among the land No. 1, 8, 9, 10, 11, 12, 13, 14, 15, and 8, with the order of priority, 103. 46 meters on the top of the warehouse of the prefabricated Rolllllllle branch, and one-story branch, which connects each of the (B) parts on the ground of the instant land No. 16, 17, 18, 19, and 16, with the exception of the above parts on the land No. 2, 4, 200, 21, 221, 23, and 24, 24, and 16.

C. On August 2, 2005, the defendant filed a lawsuit with the plaintiff on August 2, 2005 against the plaintiff for the implementation of the procedure for ownership transfer registration (this court's case where ownership transfer registration pursuant to the agreement 2005da51569 was filed) on the ground that there was an agreement on the establishment of a co-ownership relationship with respect to the above land on the part of 1/4 of each of the above land among the above land, and the court of the first instance sentenced the defendant and B to dismiss their claims on May 10, 2007, and the defendant and B appealed again, but the judgment was dismissed on March 21, 2008, and the above judgment became final and conclusive around that time.

D. On August 2005, the Plaintiff verbally notified the Defendant that the contract for free use of each of the instant land should be terminated as soon as the Defendant was served with a copy of the complaint of the instant claim for ownership transfer registration filed by the Defendant.

E. On November 14, 2008, the defendant removed the concrete floor of the above building on the 1st floor of the warehouse in the part of the ship (A), which connects each point of the attached drawings No. 8, 9, 10, 11, 12, 13, 14, 15, and 8 among the land No. 1 of this case, in sequence, from among the land No. 1 of this case, the concrete floor of the above building still remains.

【Uncontentious facts, Gap’s evidence 1 through 9 (including each number), and Eul’s evidence 12; Gap’s testimony and video; the result of the survey and appraisal conducted by the first instance appraiser D; the purport of the whole pleadings

3. The assertion and judgment

A. The parties’ assertion

The plaintiff asserts that the defendant, on August 2005, terminated a loan agreement for use of each of the lands of this case against the defendant on each of the lands of this case, the defendant is obligated to remove each of the relevant buildings he newly built, deliver the relevant part of the land of this case, and pay unjust enrichment for each of the above lands after the termination date of the loan for use.

On the other hand, the defendant concluded a loan agreement with the plaintiff which does not specify the duration of the contract.

As long as a solid building is used on each land of the case, the Plaintiff’s right to terminate the construction has not yet lapsed due to the lapse of the period of time sufficient for the profit from the use of the building. Therefore, the Plaintiff’s assertion is without merit.

B. Determination

1) Whether a loan contract is terminated

In light of the legitimacy of the rescission of the loan for use against the plaintiff, if the duration of the loan for use is not determined in general for the purpose of the loan for use, the borrower shall return the object when use or profit-making according to the nature of the contract or the object is terminated. However, even if the private profit-making is not terminated in reality, when the sufficient period for use or profit-making expires, the lender may terminate the contract at any time and claim the return of the object borrowed. Whether the sufficient period for use or profit-making has expired or not shall be determined by the fair position, comprehensively taking into account the circumstances at the time of the loan for use contract, the period of use and use of the borrower, the circumstances that the lender needs to return, etc.

Examining the instant case, considering the following facts: (a) the Defendant’s gratuitous use period reaches about 15 years; (b) the building built by the Defendant is difficult to be deemed as a solid building as a prefabricated panel and container container; and (c) the Defendant, the lender, was not only indicated the purport or any subparagraph of the inspection of permission for free use; and (d) rather, the Defendant’s civil action claiming partial share out of the instant land No. 1, which was continuing to dispute until the appellate court, was based on a lawsuit claiming partial share, and the trust was weak enough to do so, it is reasonable to deem that the termination of the instant loan agreement made against the Defendant after the Plaintiff was filed for the registration of ownership transfer to be lawful (see Supreme Court Decision 2001Da23669, Jul. 24, 2001).

2) the duty of removal and delivery

As seen above, the defendant is obligated to remove part of the above warehouse on April 46, 103 (as recognized above, while the defendant removed part of the above warehouse, since the concrete floor part of the above warehouse still remains as it remains, it cannot be said that the removal is completed) and the attached drawing indication 16, 17, 18, 19, and 16 among the lands listed in paragraph (1) of the separate sheet among the lands listed in paragraph (1) of the separate sheet, each of which is connected with each of the above items on the ground (Ga) of the above section on the ground, each of which is sub-paragraph (a) of the annexed drawing, and each of which is sub-paragraph (a) of the annexed list, among the lands listed in paragraph (1) of the separate sheet.

3) Duty to return unjust enrichment

As seen earlier, as long as the loan contract for use of each land of this case was terminated between the Plaintiff and the Defendant, the Defendant is obligated to return unjust enrichment equivalent to the rent due to the use of each of the above lands after the termination date (the Defendant’s sub-lease of part of the above land to A without permission is as seen earlier, and it is reasonable to view that the Defendant still assumes the obligation to return unjust enrichment to the Plaintiff as the user, even if A occupies part of the above land).

Furthermore, considering the scope of unjust enrichment to be returned by the Defendant as a result of the appraisal of rent by appraiser E of the first instance trial, the rent of land of this case is KRW 9, 291, 520 ( KRW 774, 290 per month), KRW 10, 727, 680 per month, KRW 11, 336, 960, KRW 11, 750, and KRW 400 per month ( KRW 1979, 200 per month), and the rent of land of this case is KRW 187, 880, KRW 150 after 205, KRW 200, KRW 208, KRW 200, KRW 2000 per month, KRW 208, KRW 2008, KRW 2006, KRW 209, KRW 209, and KRW 208, KRW 209, KRW 209.

Therefore, the Defendant, as unjust enrichment, was the date of termination of the instant loan agreement for use from September 1, 2005 to August 31, 2008, was 33,65, and 360 won (in 774,290 won x 4 months) + (in 10, 727, 680 won + 11, 336, 960 won + (in 979, 200 won x 8 months) + (15, 660 won x 4 months) + (in 209, 200 won) + (in 19, 100 won x 80 won) + (in 200 won) from September 1, 208; and (in 2009 to September 29, 200) each of the instant lands.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed as it is without merit.

Justices Kim Tae-il

Judges Kim Hyun-jin

Judges Kim Jong-hoon