2014Da82002 Payments for Goods

A

Senior Construction Co., Ltd.

Daegu High Court Decision 2013Na5269 Decided October 16, 2014

September 7, 2017

Of the part of the lower judgment’s claim for unjust enrichment, the part concerning KRW 9,376,040 and damages for delay thereof shall be reversed, and this part of the case shall be remanded to the Daegu High Court.

The grounds of appeal are examined.

1. Even if a lessee allows a third party to use or make profits from the leased object without the consent of the lessor, such as transferring or sub-lease the leased object to a third party, the lessor still has a right to claim the rent against the lessee unless the lease contract is terminated or the lease contract is lawfully terminated due to other reasons. Therefore, to the extent that the lease exists, the lessor cannot claim for damages or claim for restitution of unjust enrichment against the third party on the ground of illegal occupancy (see, e.g., Supreme Court Decision 2006Da10323, Feb. 28, 2008). However, the lessor holding the leased object after the termination of the lease contract may claim for the above damages or claim for restitution of unjust enrichment against the third party.

2. From November 1, 2012 to January 31, 2013, the Plaintiff sought restitution of unjust enrichment against the Defendant, alleging that “the Defendant used each movable property listed in the attached list of the lower judgment, which was owned by the Plaintiff, to obtain profit equivalent to the rent of each of the said movable property without any legal cause, and incurred damage equivalent to the said amount to the Plaintiff.” Accordingly, the lower court determined that the Plaintiff could not file a claim for restitution of unjust enrichment against the Defendant, on the ground that: (a) the Plaintiff delivered each of the said movable property to the said construction site in accordance with the instant lease agreement with the purport that the Plaintiff leases temporary materials at the construction site of this case; and (b) C, who had been performing construction work at the construction site of this case, suspended construction work for the first time on September 2012; (c) the Defendant continued construction and used part of each of the said movable property while,

3. Examining the foregoing legal doctrine in light of the foregoing, the lower court’s determination is difficult to accept.

According to the reasoning of the lower judgment and the record, the Plaintiff, the owner of each of the foregoing movables in the instant lease agreement, as the lessor, and B, as the lessee, as the agent of the said company, and the Plaintiff, on October 29, 2012, sent a document verifying the content of the termination of the instant lease agreement to the said company. The lower court determined to the effect that the said company cannot be deemed a lessee of the instant lease agreement since it did not have legitimate power to represent C. However, even if the said company is not a lessee, considering the circumstances that the Plaintiff filed a claim for return of unjust enrichment during the period from November 1, 2012 to January 31, 2013, the Plaintiff may be deemed to have filed a claim for return of unjust enrichment with the Defendant on the premise that the instant lease agreement was lawfully terminated. Accordingly, the lower court should have clearly arranged to the Plaintiff regarding whether the pertinent lease agreement was lawfully terminated and the period of termination thereof, urged the Plaintiff to prove necessary matters, and demanded the Defendant to return unjust enrichment to the Defendant.

Nevertheless, the lower court erred by misapprehending the legal doctrine on return of unjust enrichment, thereby failing to exhaust all necessary deliberations, solely on the ground that the Defendant was not the other party to the instant lease agreement.

4. Therefore, among the part of the judgment below's claim for unjust enrichment, the part of the claim for unjust enrichment, 9,376,040 won, which is the scope of appeal filed by the plaintiff, shall be reversed, and this part of the case shall be remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent

Justices Cho Jae-chul

Justices Go Young-young

Chief Justice Cho Jae-hee

Justices Kim Jong-il