[1] Requirements for the claim for the recovery of possession, and the meaning and standard for determination of “Possession” / Whether the principal right holder shall institute a preliminary counterclaim based on the principal right in preparation for the acceptance of the principal right claim and both claims are with merit (affirmative), and whether the court may reject all the principal right based on the right to possess (negative)

[2] In a case where a principal lawsuit and a preliminary counterclaim are filed against the principal lawsuit claiming delivery based on ownership, and both the principal lawsuit and the principal lawsuit are accepted and confirmed, whether the possessor may recover possession of the goods by compulsory execution with an execution clause granted pursuant to the final judgment of the principal lawsuit (affirmative)

[3] Whether a person to whom the right of the borrower was transferred in a loan for use without the consent of the lender can oppose the lender (negative)

[1] If the possessor was deprived of possession, he/she may demand the return of the article. In such a claim for the recovery of possession, he/she can only examine whether the article was occupied at the time when the possessor asserts that he/she was deprived of possession (Article 204(1) of the Civil Code). Here, the possession refers to the objective relationship that is deemed to belong to the factual control of the person in terms of social norms and is in de facto control, and the object is not necessarily a physical and practical control, but a decision should be made in conformity with the concept of society by taking into account the time, space and principal relation with the article, the possibility of excluding others’ control, etc.

Possessory actions and actions on title do not affect each other, and they cannot be ruled on the grounds of the principal right. As such, the claim for recovery of possession cannot be rejected on the ground that the person who has occupied the right has the principal right with respect to the claim for recovery of possession (Article 208 of the Civil Act). Therefore, in cases where the principal right holder files a preliminary counterclaim based on the principal right in preparation for the acceptance of the principal claim against the right of possession, and both claims are reasonable, the court must accept both the principal claim based on the right of possession and the preliminary counterclaim based on the principal right and the principal claim based on the right of possession, and shall not reject the claim on the principal claim based on the right of possession on the basis of

[2] On the merits of the recovery of possession, a counterclaim for delivery based on ownership is filed and confirmed, and both a principal lawsuit and a preliminary counterclaim are accepted, the possessor may recover possession of the goods by compulsory execution upon obtaining an execution clause granted by the final judgment of the principal lawsuit. Since a counterclaim based on ownership of the principal lawsuit is a condition suspending the implementation of the obligation of the principal lawsuit, this right holder may recover possession of the goods by compulsory execution pursuant to the final judgment of the principal lawsuit only after obtaining the execution clause after the execution of the principal lawsuit. These processes result in restoring possession by means of self-help for which the original right holder is not allowed. This process is the process of restoring possession by the first right holder, and any obstacle installed during the course may be removed by the main right holder. However, if the execution of the recovery of possession by the possessor is merely a repeated change in the state of possession without any benefit or it is clearly acknowledged that the possession right holder cannot be permitted in light of justice and in view of social life, or if the possessor of the main right is deemed to have won the preliminary execution based on the final judgment of the final judgment of the original lawsuit, thereby preventing the possessor from winning.

[3] Since a free contract, such as a loan for use, focuses on an individual relationship as a donation, the borrower of the loan for use may not allow a third party to use or take profits from the loan without the consent of the lender unless there exist any special circumstances such as the special agreement between the parties concerned (Article 610(2) of the Civil Act). If the borrower violates the above provisions, the lender may rescind the contract, or demand a third party to deliver the object without cancelling the contract (Article 610(3) of the Civil Act), and the person to whom the right of the borrower was transferred at the loan for use may not oppose the lender unless the lender consents to such transfer.

[1] Articles 192, 204(1), 208, and 213 of the Civil Act / [2] Articles 192, 204(1), 208, and 213 of the Civil Act; Article 44 of the Civil Execution Act / [3] Articles 609 and 610 of the Civil Act

[1] Supreme Court Decision 67Da479 Decided June 20, 1967 (No. 15-2, 84) Supreme Court Decision 91Da38266 Decided June 23, 1992 (Gong1992, 2239) Supreme Court Decision 95Da8713 Decided August 23, 1996 (Gong196Ha, 2809), Supreme Court Decision 2010Da18294 Decided July 15, 2010, Supreme Court Decision 2018Da266105 Decided May 14, 202 / [2] Supreme Court Decision 96Da4862 decided September 12, 197 (Gong1997Ha, 307Ha, 197Da196384 decided May 16, 197) / [3] Supreme Court Decision 196Da19845 decided May 16, 1997

M&D Co., Ltd. (formerly: G&D Co., Ltd., Ltd., Ltd., Counsel for the plaintiff-appellant)

Defendant Counterclaim (Law Firm LLC, Attorneys Cho Jae-ho et al., Counsel for the defendant-Counterclaim)

Suwon District Court Decision 2018Na70752, 70769 decided November 29, 2018

All appeals are dismissed. The costs of appeal are assessed against each party, including the principal lawsuit and counterclaim.

The grounds of appeal are examined.

1. Details of the instant case

The reasoning of the lower judgment and the record reveal the following facts.

A. On November 7, 2016, the building of this case was newly constructed on January 20, 2012 and completed registration of ownership preservation, and the registration of ownership transfer was completed on November 7, 2016 on the ground of trust to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) (hereinafter “Plaintiff”) after purchase by the Nonparty in the voluntary auction procedure and through the development of the Seongdong-friendly Industry Co., Ltd. on the same day (hereinafter “FFF”) on the same day. The Plaintiff acquired ownership of the building of this case and used the land of this case as entry into the parking lot of the building of this case.

B. Around July 2010, the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) issued a written consent to land use, stating “The instant land is to be used for the purpose of applying for permission for construction of Class II neighborhood living facilities in Asia Construction as owned by the Defendant on July 26, 2010,” to the owner of the instant land.

C. In the remarks column of the specification of the article to be sold in the auction case of the instant building (Seoul District Court Decision 2014Ma42966, etc.), the phrase “the sale only of the instant building and the minimum sale price of the instant building are assessed against the appraised value of only the building” is written.

D. On December 29, 2016, the Defendant sent a document verifying the purport that “if the use fee for the instant land is not paid, access to the instant land would be restricted.” On January 10, 2017, the Defendant installed the instant fence on the instant land on the ground that the use fee for the instant land was not paid.

E. After the Plaintiff installed the instant pents, the Plaintiff did not use or benefit from the instant land as an access road to the parking lot of the instant building.

F. As to the Defendant’s installation of the instant pents, the Plaintiff sought removal of the instant pents as a result of the disturbance removal of the possessed goods pursuant to Article 205 of the Civil Act, and subsequently sought removal of the instant pents and delivery of the instant land by returning the possessed goods pursuant to Article 204 of the Civil Act. In preparation for cases where the Plaintiff’s claim is accepted, the Defendant sought delivery of the instant land based on ownership pursuant to Article 213 of the Civil Act, and the lower court accepted both the Plaintiff’s conjunctive claim and the Defendant’s conjunctive counterclaim claim.

2. Judgment on the Defendant’s grounds of appeal

A. If the possessor was deprived of possession, he/she may demand the return of the article in question. In such a claim for the recovery of possession, he/she can only examine whether the article was occupied at the time when he/she asserts that he/she was deprived of possession (see, e.g., Article 204(1) of the Civil Act and Article 95Da8713, Aug. 23, 1996). Here, possession refers to the objective relationship that is deemed to belong to the factual control of the person in terms of social norms, and to have de facto control, it does not necessarily mean that the article is physically and practically controlled, but should be determined for a purpose consistent with social norms in view of the time, space and principal right relationship with the object, and the possibility of excluding others’ control (see, e.g., Supreme Court Decisions 91Da38266, Jun. 23, 1992; 2018Da26105, May 14, 2020).

Possessory right actions and actions on title do not affect each other, and the lawsuit on possessory right cannot be tried on the grounds of the principal right. Thus, the claim for recovery of possession cannot be rejected on the ground that the person who has deprived of possession has the principal right on the claim for recovery of possession (see, e.g., Article 208 of the Civil Act, Supreme Court Decisions 67Da479, Jun. 20, 1967; 2010Da18294, Jul. 15, 2010). Therefore, with respect to the principal lawsuit based on possessory right, the principal right holder files a preliminary counterclaim based on the principal right in preparation for the acceptance of the principal claim, and the two claims are with merit, the court shall accept both the preliminary counterclaim based on possessory right and the principal right based on the principal right, and shall not reject it on the ground of the principal right based on the possessory right.

Therefore, as in the instant case, if both the principal claim and the conjunctive counterclaim are accepted as to the principal claim for delivery of the possession based on the ownership, the possessor may recover possession of the goods by compulsory execution upon obtaining the execution clause granted by the final judgment of the principal lawsuit. Inasmuch as a counterclaim claim based on the ownership of the principal right holder is a condition suspending the implementation of the principal lawsuit, this right holder may recover possession of the goods by compulsory execution pursuant to the final judgment only after obtaining the execution clause after obtaining the execution clause after the execution of the principal lawsuit. These processes result in restoring possession by means of self-help for which the original right holder is not allowed. This process is the process of removing obstacles, etc. installed in the course of the said right holder’s possession: Provided, That if the execution of the possession recovery by the possessor is merely a repetition of any change in the state of possession without any benefit or it is clearly deemed impossible for the original right holder to win the execution against the justice of the first right holder in a social life (see, e.g., Supreme Court Decision 9Da2684, Sept. 26, 1997).

B. On January 10, 2017, the lower court recognized that the Plaintiff used the instant land as an entrance road to the parking lot of the instant building at the time the Defendant installed the instant pents, and accordingly, recognized the Plaintiff’s possession of the instant land. Since the Plaintiff’s possession of the instant land was deprived of the Plaintiff due to the Defendant’s installation of the instant pents, the Defendant was obligated to return the said land to the Plaintiff along with the removal of the instant pents, and thus, accepted the conjunctive claim in the Plaintiff’s principal claim.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on possessory right, contrary to what

3. Judgment on the Plaintiff’s grounds of appeal

A. The lower court determined that the right to use and benefit from the instant land does not constitute a subordinate right to the instant building. Accordingly, the lower court rejected the Plaintiff’s assertion that the right to use and benefit from the instant land was succeeded to the Nonparty after the right to use and benefit from the instant land was succeeded to the Nonparty during the voluntary auction procedure for the instant building and then succeeded to the Plaintiff through the development of the sub-industry industry, and concluded that the Plaintiff

B. Since a gratuitous contract, such as a loan for use, places emphasis on an individual relationship as a donation, the borrower of the loan for use may not allow a third party to use or take profits from the loan without the consent of the lender (Article 610(2) of the Civil Act). If the borrower violates the above provisions, the lender may rescind the contract or demand a third party to deliver the object without cancelling the contract (Article 610(3) of the Civil Act). A person to whom the right of the borrower was transferred at the loan for use may not oppose the lender without the consent of the lender regarding such transfer (see, e.g., Supreme Court Decisions 65Da1748, Nov. 16, 1965; 98Da61746, May 11, 199).

In light of the above facts in light of the above legal principles, in the instant case where even if the Defendant and Asia Construction entered into a loan agreement for use of the instant land, it cannot be deemed that the Plaintiff, a third party, obtained the consent of the Defendant, who is the lender, was not deemed to have obtained the consent of the Defendant, the lower court was justifiable to have rejected the Plaintiff’s assertion that although the reasoning of the lower court on this part was inappropriate, the Plaintiff succeeded to and acquired the right to loan for use by Asian Construction. In

Furthermore, in light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the principle of trust and good faith in accepting the Defendant’s counterclaim claim part among the Defendant’s counterclaim claim.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Tae-tae (Presiding Justice)