[1] In cases where a lessee has returned the leased property during the lease term due to a lessee's default, the object of liquidation and the method of calculating the amount of liquidation

[2] The case holding that the lessee shall reimburse all the expenses actually paid under the lease agreement in case where the lessee incurred expenses incurred by the lease company due to the agreement, etc. in the lawsuit filed by the landowner on the land owned by another person because a part of the leased object was installed on the land owned by another person when the lessee recovered the leased object due to the lessee’s default

[1] In the so-called "financial lease", if a lessee redeems a leased object from a lessee during the term of lease, it is necessary to return profits acquired by such return or liquidate the leased object with appropriation for the payment of a lease bond, barring any special circumstance. In this case, the object of liquidation is the difference between the value of the object at the time of returning the leased object and the residual value of the leased object at the time of the expiration of the term of original lease. Furthermore, in calculating the liquidation amount, there are many cases where there are many cases where the leased object has no commerciality or marketity and it is difficult to determine the exchange value due to the lack of commerciality or market feasibility, so the exchange value is only zero if it is impossible to assess the exchange value based on the transaction value due to the lease company's actual disposal of the object.

[2] The case holding that the expenses incurred by the lessee due to the agreement of the lawsuit, such as delivery of the land, etc. filed by the lessee on the land owned by another person adjacent to the factory site of the lessee, when the lessee installs the leased object, constitute the expenses paid by the lessee with respect to the claim of the third party for the repayment of the claim under the lease agreement, the repayment of the debt, the return of the leased object, and other expenses incurred by the lessee, which are the remedy of the lessee under the lease agreement, and the subsequent remedy by the lessee, constitutes the expenses paid by the lessee, and the scope of the reimbursement is also the entire expenses, barring any special circumstances.

[1] Articles 105 and 393 of the Civil Act / [2] Articles 105 and 398 of the Civil Act

[1] Supreme Court Decision 91Da25598 delivered on July 14, 1992 (Gong1992, 2378) Supreme Court Decision 94Da60219 delivered on September 29, 1995 (Gong1995Sang, 3606) / [2] Supreme Court Decision 86Meu70 delivered on August 19, 1986 (Gong1986, 1217)

Co., Ltd. (Attorney Kim Jong-sung, Counsel for the defendant-appellant)

[Defendant-Appellant] Defendant 1 and 3 others (Law Firm Kim & Shind, Attorneys Jeong Jae-deok et al., Counsel for defendant-appellant-appellant)

Seoul High Court Decision 96Na32494 delivered on April 16, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. As to the grounds of appeal Nos. 1 and 4

In light of the records, the court below acknowledged that the defendant applied for a provisional disposition on July 31, 1991 for the provisional disposition on the transfer of possession of corporeal movables in order to recover the leased object immediately before the termination of the lease contract of this case, but did not execute the provisional disposition due to the suspension of the employees belonging to the non-party gold-gu Industrial Corporation (hereinafter the non-party company), which is the lessee, the non-party company, the lessee, was placed in possession of the house office due to compulsory execution on the leased object of the non-party company, and the defendant filed a lawsuit against the above execution creditor on September 6, 1992 against the third party, and was sentenced in favor of the above judgment on October 20, 192, and recognized that the above judgment became final and conclusive on November 24, 199 of the same year, and that the defendant did not exercise the right to manage and dispose of the leased object until the date when the above judgment became final and conclusive, and that the defendant violated the legal principles on the transfer of leased object under the law.

2. As to the grounds of appeal Nos. 2 and 3

In the so-called financial lease, if a lessee redeems a leased object from a lessee during the maturity of a lease period, the cause of such refund requires return of profits acquired by the lessee, or appropriation for the payment of a lease bond, etc. barring any special circumstance. In this case, the object of liquidation is the difference between the value of the leased object and the remaining value of the leased object at the expiration of the lease period of its original lease at the time of returning the leased object. Furthermore, in calculating the liquidation amount, there are many cases where there are many cases where the leased object has no commerciality or marketability and it is difficult to determine the exchange value due to the lack of commerciality or market feasibility, and it is inevitable to liquidate the exchange value with the value of the leased object as the disposal value if the lessee disposes of the object in fact (see, e.g., Supreme Court Decision 94Da60219, Sept. 29, 195).

원심판결 이유를 기록에 비추어 살펴보면, 원심이 그 채택 증거들을 종합하여 이 사건 리스물건 중 갠트리크레인과 타워크레인 및 나머지 기계들 중 일부는 대량 생산되는 것이 아니라 수요자가 요구하는 설계에 따라 개별적으로 주문생산되는 것이며, 소외 회사도 위 크레인들을 자신의 용도에 맞게 주문제작한 사실, 이 사건 리스물건의 공매당시 입찰 참가자는 낙찰자인 소외 동일산업 주식회사밖에 없었던 사실, 이 사건 리스물건을 일괄 매수한 위 동일산업 주식회사도 갠트리크레인 1대, 유압절곡기, 밀링, 파워프레스, 에어 콤푸레서, 벤더 머신은 사용하고 있으나, 나머지 기계들은 필요가 없어 처분하고자 하였지만 원매자가 없어 이를 노천에 방치하여 두고 있는 사실, 이 사건 리스물건들의 취득가액 및 리스가액의 약 73.5%를 차지하는 타워크레인과 갠트리크레인에 대하여는 위와 같은 특성 때문에 중고시장이 형성되어 있지 않아 그 교환가치를 평가할 수 없고, 나머지 기계들에 대하여는 왜곡되기는 하였으나 중고시장이 형성되어 있어 그 교환가치를 평가할 수 있는데, 위 리스물건 반환일 무렵의 위 나머지 기계들의 비준가격(대상기계와 동일 또는 유사한 기계와 비교하여 산정한 가격, 다만 관리상태 등에 따른 가격요소의 차이는 반영되지 않는다.)은 합계 금 95,970,000원 정도인 사실, 피고는 이 사건 리스물건의 보관상태가 좋지 않은 점에 중고기계 중개인들의 의견을 참고하여 이 사건 리스물건의 교환가치를 금 80,000,000원 내지 90,000,000원으로 평가한 후 이를 대금 110,000,000원에 공매처분한 사실을 인정한 다음, 이 사건 리스물건의 시장성 및 범용성, 위 공매에 이른 경위, 공매의 시기 및 공매가격 등에 비추어 이 사건 리스물건의 일괄매각 대금 110,000,000원을 이 사건 리스물건의 반환 당시의 교환가치로 인정함이 상당하다고 판단한 조치는 정당한 것으로 수긍할 수 있고, 거기에 상고이유로 주장하는 바와 같은 심리미진, 채증법칙 위배, 석명권 불행사 내지는 석명의무 위반 등의 위법이 있다고 할 수 없다.

3. As to the fifth ground for appeal

In light of the records, the court below is just in holding that the non-party company's construction of the lease article in this case and part of it was constructed on the non-party's land adjacent to the non-party company's factory site, and the expenses of the decision that was paid by the non-party company as agreed to pay for the non-party company's non-performance of obligations under the lease contract in this case, and the claim of the third party as to the repayment of claims under the lease contract and the claim for return of the lease article, which is the defendant's remedy, constitutes the expenses paid by the non-party company, and the scope of its repayment is also the whole expenses actually paid unless there are special circumstances. In so doing, the court below did not err by misapprehending the legal principles as argued in the Grounds for Appeal (see Supreme Court Decision 86Meu70, Aug. 19, 1986).

4. Regarding ground of appeal No. 6

In light of the records, the court below is justified in finding a fact that the plaintiff was paid a sum of KRW 81,020,775 out of KRW 100,00,000, which was distributed to the defendant in the auction procedure as a provisional execution (debt collection order) based on the judgment of the court of the first instance on February 4, 1997, which declared provisional execution on February 4, 1997, and there is no violation of the rules of evidence as alleged in the grounds of appeal.

5. 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 Lee Yong-hun (Presiding Justice)