Whether a claim may be made against an indirect possessor in cases where a claim for delivery of immovables is made pursuant to the agreement (affirmative)

Article 194 of the Civil Act

Supreme Court Decision 2011Da5813 Decided June 27, 2013

Plaintiff (Counterclaim Defendant)

Defendant-Counterclaim Plaintiff (Attorney So-young et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2013Na29171, 29188 Decided June 26, 2014

The part of the judgment of the court below regarding the main lawsuit shall be reversed, and that part of the case shall be remanded to the Panel Division of the Seoul Central District Court.

The grounds of appeal are examined.

Unlike in cases where a claim for the delivery of real estate is made on the ground of an illegal possession, the other party’s claim against an indirect possessor is not limited to direct occupant, and the other party’s claim is also permitted in cases where a claim for the delivery of real estate is made pursuant to an agreement. Provided, That where the other party’s delivery obligation is impossible due to direct possession by a third party, the other party’s claim for the delivery of real estate against the other party is not allowed. Here, nonperformance of the delivery obligation refers to cases where the other party’s fulfillment of the delivery obligation cannot be expected in light of the other party’s experience rules or transaction concept in social life, rather than where it is absolute and physical impossibility (see Supreme Court Decision 2011Da5813, Jun. 27, 20

According to the reasoning of the judgment below and the records, ① on August 19, 2003, the Defendant (Counterclaim Plaintiff, Defendant hereinafter) entered into a contract with Nonparty 1 to lease the instant store from July 1, 2003 to July 31, 2008, with the Plaintiff’s representative, and the Plaintiff’s right to lease from Nonparty 1 to Nonparty 2 as the Plaintiff’s owner of the instant store. The Defendant operated the restaurant with the name of Nonparty 1’s 50,000,000, 70,000 won since around that time, the lease deposit was increased to KRW 10,000,000 from the instant store, and the rent was also KRW 50,00 per month to KRW 10,50,000,000,000 for the Plaintiff’s share to Nonparty 2, who is the Plaintiff’s owner of the instant store, and the Defendant paid the Plaintiff’s share to Nonparty 1 and Nonparty 2 under the name of the Plaintiff’s new co-owner 2.

Examining these facts in light of the legal principles as seen earlier, as the Plaintiff’s relative, Nonparty 1, 2, 4, and 8, who entered into a lease agreement with respect to the instant store on behalf of the Plaintiff, registered as a business operator, or became a co-owner with respect to the instant store, occupied the instant store under the circumstance that there is a dispute with respect to the terms and conditions of the lease between the Defendant and the co-owners of the instant store, and later, as long as the Defendant expressed his intention to terminate the lease agreement with respect to the instant store upon the Defendant’s request for the return of the lease deposit, the Defendant appears unable to expect the instant store to be delivered again from the direct occupant, such as Nonparty 1, etc., and accordingly, the Defendant became unable to perform the obligation to deliver the instant store to the Plaintiff. Therefore, the Plaintiff shall not be deemed to have

Nevertheless, the lower court determined that the Defendant was obligated to deliver the instant store to the Plaintiff at the same time with the payment of KRW 11,243,480 as the remainder of lease deposit which the Defendant failed to receive from the Plaintiff solely on the ground that the lease contract for the instant store was terminated. In so doing, the lower court erred by misapprehending the legal doctrine on the impossibility of performing the obligation of delivery of real estate with the other party to the claim for delivery of real estate and the obligation of delivery of real estate

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part concerning the principal lawsuit among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)