1. A case of rejecting the right to purchase a building by a housing site lessee;

2. Liability in case where the lien holder has used the thing in custody in excess of the degree of preservation of the thing in custody;

1. The lessee's right to demand purchase of a building as stipulated in Article 643 of the Civil Act must have agreed to remove the building on the leased land between the contracting parties with the object of owning the building and the lease of the land as the object of the ownership of the building. The claim for purchase of the building in this case is an extremely low (180 million won) and the building is constructed to use the site as the parking lot and the third party, and it is not reasonable to view that the lease of the building in this case agreed to remove the building in this case and deliver the site to the Plaintiff after the expiration of the lease term as the object of the lease of the building in this case.

2. Where the possession of the site is not illegal possession based on the legitimate right of retention, but the exercise of the right of retention is merely a use of the goods in excess of the extent of preservation for the custody of the goods in custody, barring any special circumstance, the benefit at the rent shall be the unjust enrichment and shall be returned to the owner of the goods in custody.

Articles 324(2) and 643 of the Civil Act

Parkyang-yang et al.

Kim Yong-sung

Gwangju District Court (80 Ghana163)

The judgment of the first instance is modified as follows.

피고는, 원고 박양순으로부터 금 768,220원을 지급받음과 상환으로 위 원고에게 광주시 북구 중흥동 (지번 1 생략) 대 131평 2홉 지상에 건립된 별지도면표시 ㄱ, ㄴ, ㄷ, ㄹ, ㅁ, ㅂ, ㄱ의 각 점을 순차로 연결한 선내의 세멘부록크조 스레트즙 평가건 사무실 및 주택 건평 85.5평방미터와 같은 도면표시 ㅅ, ㅇ, ㅈ, ㅊ, ㅅ의 각 점을 순차로 연결한 선내의 세멘부록크조 스레트즙 평가건 창고 6.2평방미터 및 같은 도면표시 ㄱ’, ㄴ’, ㄷ’, ㅎ’, ㄱ’의 각 점을 순차로 연결한 선내의 세멘부록크조 스레트즙 평가건 변소 건평 3.8평방미터를 각 철거하여 위 대지 131평 2홉을 인도하고, 원고 문병학으로부터 금 1,598,336원을 지급받음과 상환으로 위 원고에게 같은 동 (지번 2 생략) 대 149평 3홉 지상에 건립된 같은 도면 표시 ㅇ, ㄹ’, ㅇ’, ㅈ, ㅇ의 각 점을 순차로 연결한 선내의 세멘부록크조 스레트즙 평가건 창고 건평 32.7평방미터 및 같은 도면표시 ㅂ’, ㅅ’, ㅇ’, ㅈ’, ㅂ’의 각 점을 순차로 연결한 선내의 세멘부록크조스레트즙 평가건 주택 및 사무실 건평 84.2평방미터를 각 철거하여 위 대지 149평 3홉을 인도하라.

The plaintiffs' remaining claims are dismissed.

All the costs of lawsuit shall be divided into three parts of the first and second instances, and two of them shall be borne by the defendant, and the remainder by the plaintiffs respectively.

The above paragraph (2) can be provisionally executed.

The defendant removed each building in the former part of Paragraph 2 of the Order, which was constructed in the middle-gu, Seoul Special Metropolitan City (number 1 omitted), 131-2 Hobbbbbs, 131-2, and delivered the above site to the plaintiff Parkyang-si, Gwangju, by transferring the above site. The defendant shall pay 84,191 won per month from January 1, 1980 to the delivery of the above site. The defendant shall remove each building in the latter part of Paragraph 2 of the Order, which was constructed in the 149-2 Hobs, 149-2, 149-2, 199-2, and deliver the above site to the plaintiff Goyang-si, and the money shall be paid from January 1, 1980 to the delivery of the above site by 95,805 won per month.

The judgment that the lawsuit costs shall be borne by the defendant and the declaration of provisional execution

The part of the first instance judgment against the plaintiffs shall be revoked.

The defendant shall pay to the plaintiffs each money stated in the purport of the claim.

The judgment that the costs of lawsuit shall be borne by the defendant in both the first and second trials.

The part of the judgment of the first instance against the defendant shall be revoked.

The plaintiffs' claims are dismissed.

The judgment of both the first and second courts that the lawsuit costs shall be borne by the plaintiffs.

1. Of the land in Gwangju-si, Gwangju-si, Gwangju-si, one hundred and thirty-onebbebbes owned by the plaintiff Parkyang-dong (number 1 omitted) and the fact that the plaintiff Cho Byung-dong, 149-3 Hobbes and five other co-owners are not in dispute between the parties, and there is no dispute between the parties, and the defendant's testimony as well as Gap evidence No. 5 (Notice) recognizing the official portion and the receipt thereof, and the appraisal result of the court below's testimony as well as appraiser Go-do, and the fact that the court below and the party's verification result were all of the arguments. On September 9, 1976, the defendant leased the land in this case from the plaintiffs to KRW 1,00,000, KRW 70,000, KRW 170,000, and the defendant's construction and completion of the lease agreement between the plaintiffs 197 and the party's construction and completion of the lease agreement between the plaintiffs 197.197.

Therefore, the above lease contract between the plaintiffs and the defendant on the site of this case is not in special circumstances due to the expiration of the lease period, and the defendant removed each building stipulated in the former part of Paragraph (2) of the order constructed on the site of this case from the owner of 131-2 Hobbebbe in the order of 131-2 Hobbe in the above site to deliver the above site. On the other hand, with respect to 149-3 Hobbe in the above site as co-owner of the above site of this case, it shall be bound to remove each building in the latter part of Paragraph (2) of the order constructed on the site of this case

Although the Defendant initially paid KRW 1,00,000 to the Plaintiffs with the lease deposit, the Defendant asserted that around November 1, 1977, the Defendant agreed to extend the lease term by using the instant site until the Gwangju Station located near the instant site is transferred to another place, while the Defendant paid the Plaintiffs a monthly rent of KRW 70,000,000 in addition to the above lease deposit, and that the Defendant agreed to extend the lease term by using the instant site until the Gwangju Station located near the instant site is transferred to another place. However, the Defendant’s assertion that the witness and vibration of the lower court, other than the testimony of the lower court, was not acceptable.

In addition, since the above lease contract on the site of this case is for the purpose of owning the building of this case, the defendant asserts that the plaintiffs request the purchase of the building of this case pursuant to the provisions of Article 643 of the Civil Code, so it shall be acknowledged that the lessee's right to purchase the building of this case under Article 643 of the Civil Code is not only for the purpose of owning the building of this case, but also for the time when the contract party did not agree to remove the building of this case on the leased site. As above, it is recognized that there was an agreement between the plaintiffs and the defendant to remove the building of this case upon the expiration of the lease term of the building of this case, and even if there was no such agreement, it is difficult to recognize the fact that the building of this case was located near the site of this case, and its market price reaches 18,000,000 won, and the building of this case cannot be seen as being owned by the defendant's right to purchase the building of this case for rent of this case from 00,000 won,000 won.

Therefore, within the above expense limit, the defendant has the right to attract the land of this case until he received reimbursement from the plaintiffs, and on the other hand, the defendant paid 1,000,000 won to the plaintiffs as the security deposit for lease of the land of this case, as recognized above, the defendant's obligation to remove the building of this case and deliver the land of this case to the plaintiffs and the obligation to refund the above security deposit against the defendant as well as the obligation to simultaneously perform this obligation as the defendant's defense.

2. The plaintiffs asserted that the defendant's possession of the site in this case after the expiration of the lease term is illegal possession and sought compensation for damages against the defendant. As such, it is recognized as above that the defendant has the right to attract the site in this case until he is reimbursed for the expenses for reclamation of the site in this case from the plaintiffs. Thus, the defendant's possession of the site in this case under the above lien cannot be deemed illegal possession. Thus, the defendant's claim for damages against the rent claim in this case, which is based on the premise that the possession of the site in this case is illegal possession, is no longer necessary to determine further.

Even if the defendant's possession of the land of this case is not illegal possession, the defendant shall pay rent to the plaintiffs at least. Since the defendant did not pay rent to the plaintiffs from January 1, 1980, and thereby, the plaintiffs suffered damages equivalent to the rent, the defendant shall pay 84,191 won per month from January 1, 1980 to the closing date of the trial of this case, and from January 1, 1980 to the closing date of the trial of this case, 805 won per month to the plaintiff's literature of this case, and from January 1, 1980 to the closing date of the trial of this case, 95,805 won per month to the plaintiff's literature of this case. Thus, the defendant's above unjust enrichment of the defendant and the plaintiffs' above repayment obligation to the defendant against the defendant shall be offset against the amount equal to the above plaintiff's above unjust enrichment of this case.

Therefore, as seen earlier, although the defendant's possession of the site in this case is not an illegal possession as the possession based on the right of retention, if the right of retention is used more than the mere preservation for the right of retention, barring any special circumstance, the profit at the rent shall be the owner of the right of retention as unjust enrichment. According to each evidence that the defendant is believed to be a party member, even after the exercise of the right of retention on the site in this case, it can be recognized that the land in this case has been used for the purpose of the lease of the original site in this case and for the same purpose as that of the parking lot and the Sejong Vice Director after the exercise of the right of retention on the site in this case, and there is no counter-proof otherwise, the defendant shall not be liable to the plaintiffs for the above share in the rent in this case from January 1, 1980 to December 10, 1981, which is the date of the conclusion of the trial of this case, and it shall not be returned to the plaintiffs' share in the rent in this case within the limit of 7th of the previous rent in this case.

3. Thus, within the above expenditure limit, the defendant has the right to attract the land of this case until he received reimbursement of KRW 2,275,00 and KRW 1,275,00 for the above lease deposit, and KRW 3,200,00. The above 3,275,00 shall be paid out of KRW 1,531,836 (3,275,000 x 131.2/131,00 x 136 (1,271.2/149.3; hereinafter the same shall apply) to the above lease deposit of KRW 1,743,163 (3,275,275,00) in proportion to the size of the land of this case's ownership, and the defendant shall be liable to return KRW 1,63,00 to the plaintiff's own / 163,00,000 for each of the above lease deposit of KRW 149 square meters (2.3,163636,136,2,0636,2,24,2,24,27,24, respectively).

4. Accordingly, the plaintiffs' request for removal of the building of this case and the request for delivery of the site of this case are justified within the scope of the above recognition, and the remaining claims are dismissed without merit, and all claims for compensation for damages are dismissed. Since the judgment of the court of first instance is unfair with some conclusions different from party members, they are modified as the judgment of the court of first instance, and they are dismissed as the judgment of the court of first instance, and the remaining claims of the plaintiffs are dismissed, and the costs of the first and second trials are three-minutes, and they are assessed against the defendant and the remainder, and they are decided as per the disposition with a provisional execution declaration

Judges Lee Jong-ho (Presiding Judge)