적법점유자에 대한 장래 부당이득반환청구소송에서의 반환의무의 종기에 관하여 - 대법원 2002. 6. 14. 선고 2000다37517 판결에 대한 비판적 고찰 -

Abstract

The real estate owner can claim against the illegal occupant the return of the unfair profits accrued up to the closing date of the fact-finding hearing, as well as the return of the unfair profits accruing up to the completion date of delivery of the real estate in the future. However, even if an individual legally occupies another person's real estate based on the right to defend the simultaneous performance, but uses or profits from the above real estate without a title, it is a question of whether the return of unfair profits that will occur by the completion date of delivery of the above real estate can be sought. In this regard, Supreme Court Decision 2000da37517 on June 14, 2002 was as follows. 「In order to make a judgment ordering performance in the future, it must be something that can be determined with certainty at the time of the conclusion of the pleadings that not only the time for the performance of an obligation will come in the future, but also that the cause for non-fulfillment of obligations will continue until then. If such period of responsibility is uncertain and cannot be determined definitively at the time of the conclusion of the pleadings, a judgment ordering future performance cannot be made. In this case, the possession of the land by the defendant is lawful because it is based on the exercise of the right of simultaneous performance defense, etc., but the defendant is gaining substantial benefits by using and profiting from the land according to its original purpose. But the use and profit of the said land may be terminated before the defendant delivers the land to the plaintiff. Therefore, it cannot be concluded that it can be definitively presupposed that the cause for non-fulfillment of duty by the defendant continues until the date of delivery of the land. Therefore, a judgment cannot be made ordering the defendant to perform until the delivery of the land is completed.」 This thesis analyzes the meaning of ‘definite predestination’ in the Supreme Court decision and examines the problems of the above decision from various angles. The problems with the above judgment are as follows. First, it contradicts existing precedents regarding the meaning or scope of application of the theory of substantial benefit. Second, this ruling is difficult to harmonize with other Supreme Court ruling(Supreme Court Decision 98da2389 on May 8, 1998) that recognize the obligation to return unreasonable gains on the land of the land lessee who exercised the right to claim the purchase of the building. Third, according to this ruling, there is no choice but to deny the legality of the future claim for the return of unjust enrichment against the lessee, who is the lawful occupant, and the landlord must file a second and third action against the lessee. However, this is contrary to litigation economy and equity. Fourth, this judgment is difficult to harmonize with the judicial practice, which sets the end of the above debt as the date of delivery of the leased object when deducting the future return of unfair profits from the lease deposit. In future lawsuits against the lawful possessor for the return of unjust enrichment, the eligibility of the claim for which the end of the obligation is set as the “delivery completion date” will have to be recognized.