2020Da211085 Action

Seoul High Court Decision 20

Defendant (former name: 000)

Seoul Southern District Court Decision 2019Na54274 Decided January 17, 2020

May 28, 2020

Of the judgment of the original court, the part of the claim for the delivery of automobiles and the part of the claim for the return of unjust enrichment equivalent to the usage fees are reversed, and this part of the case is remanded to the Seoul Southern District Court. The remaining appeals are dismissed.

The grounds for appeal are determined.

1. The parties' assertion, the first instance court and the lower court's determination

The plaintiff is obligated to deliver the motor vehicle of this case to the plaintiff as the defendant occupies the motor vehicle of this case without title. ② The defendant operated the motor vehicle of this case from October 2, 2013 to impose an administrative fine of KRW 312,640 in total due to traffic offense, etc., while driving the motor vehicle of this case, the plaintiff suffered losses equivalent to the above amount. Further, the plaintiff suffered losses equivalent to KRW 4,100,90 in total, including automobile tax and the administrative fine on mandatory insurance, etc., and the defendant suffered unjust enrichment of KRW 2,469,370 in total amount of KRW 6,469,00 ( = 312,640 + KRW 4,000 + KRW 4,100 + KRW 2,05,55,370) from October 2, 2013, and the defendant claimed that the defendant paid the above amount to the plaintiff as unjust enrichment of this case from March 30, 200.

As to this, the Defendant asserted to the purport that Nonparty 1, the former representative director of the Plaintiff, offered the instant automobile to Nonparty 2, the creditor, as collateral, prepared and delivered a car abandonment note, and the Defendant again asserted to the effect that he cannot respond to the Plaintiff’s claim, since Nonparty 2 is in the status of being handed over the instant automobile with the said car abandonment note.

The first instance court rejected the Defendant’s assertion on the grounds that it cannot be deemed that the Defendant had a legitimate right of possession against the Plaintiff, who is the owner of the instant automobile, and rejected the Defendant’s claim, and rejected the remainder of the Plaintiff’s claim by citing the claim for damages of KRW 312,640, the Indian Office and the claim for return of unjust enrichment equivalent to the usage fee, and the claim for return of unjust enrichment. The lower court also rendered a judgment dismissing the Defendant’s appeal on the same grounds.

2. Judgment of the Supreme Court

A. The owner of the portion requesting the delivery of the instant vehicle and the portion claiming the return of unjust enrichment equivalent to the rent for the use thereof may demand the return of the said article from the person in possession of the said article. However, the possessor may refuse to return the article if he/she has the right to possess the said article (Article 213 of the Civil Act). The right to refuse the return includes claims involving possession, such as leases, deposits, contracts of contract, etc. In cases where the right to demand the return is included, and in cases where the holder of the claim can grant the right to possess the said article to a third party based on the consent of the owner or the agreement with the owner, etc., the third party who has been entrusted with the possession or custody from the owner or acquired the right to possess the article, barring special circumstances, may refuse the owner’s request for the return

According to the record, at the time of October 2013, Nonparty 1, the representative director of the Plaintiff, delivered the instant automobile to Nonparty 2. At that time, “At that time, Nonparty 1, the Plaintiff, deemed the owner’s possession of the instant automobile as well as the possession of the obligee, not the owner’s possession of the automobile, and does not interfere with the sale, transfer, and other acts. At the time of allowing the storage and operation of the automobile, Nonparty 1, the representative director of the Plaintiff, prepared a memorandum of the automobile (Evidence No. 4) containing the following contents: “on the part of the Plaintiff, any person shall not be able to operate even after driving the automobile,” and delivered a thickness. Nonparty 2 delivered the instant automobile to the Defendant at around the same time along with each written waiver of the said automobile. Accordingly, from October 2, 2013 to October 2, 2013, the Defendant is driving the instant automobile and making profits therefrom.

According to the above factual relationship, Nonparty 2 acquired the right to possess the instant vehicle directly pursuant to the agreement on the use and profit-making included in the letter of waiver of the vehicle as seen earlier and granted the right to possess the instant vehicle to the third party. In light of the above legal principles, this right is deemed to constitute the source of possessory right that can oppose the Plaintiff’s right to claim the return of the object alleged by the Plaintiff as long as it is maintained and continued as it is. Therefore, as the right to possess the instant vehicle is deemed to fall under the source of possessory right that can oppose the Plaintiff’s right to claim the return of the object claimed by the Plaintiff. Thus, as well as Nonparty 2, the Plaintiff cannot claim the return of unjust enrichment against the Defendant who occupied and used the instant vehicle pursuant to the agreement with Nonparty 2 as well as the first right to possess the instant vehicle.

Nevertheless, the lower court rejected the Defendant’s assertion that the instant motor vehicle was entitled to possess and use the instant motor vehicle solely based on its stated reasoning, thereby citing the Plaintiff’s claim for the delivery of the instant motor vehicle and for the return of unjust enrichment at the royalty level. In so determining, the lower court erred by exceeding the bounds of the principle of free evaluation by violating logical and empirical rules, or by misapprehending the legal doctrine on the right to claim for the return of property owned and unjust enrichment, thereby failing to exhaust all necessary deliberations.

B. The remaining part of the defendant's failure (the damage compensation amounting to 312,640 won as cited in the original trial) was fully assessed against the defendant among the judgment of the original court. However, regarding this part, there is no specific statement of grounds for objection in the petition of appeal and the written reason for appeal.

3. Conclusion

Therefore, among the judgment of the court below, the part concerning the request for delivery of automobiles and the part concerning the claim for return of unjust enrichment equivalent to the usage fees are reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal by the defendant is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung

Justices Min You-sook

Justices Lee In-bok and Lee Dong-won

Justices Noh Tae-ok