무단임대 종료 후 유치물을 취득한 소유권자의 유치권소멸청구 가부 – 대법원 2023. 8. 31. 선고 2019다295278 판결을 중심으로 -

Abstract

The Supreme Court recently recognized that the owner has the right to demand the extinction of the right of retention if a person having a right of retention had rented retained article without the debtor's consent. This is when the ownership of the retained article has been acquired after the termination of the unauthorized lease. In such cases, in order to recognize the owner's right to demand the extinction of he right of retention, there must be a breach of the duty of keeping property with care of good manager. And after the violation has ended, the owner who acquired the retained article must be able to exercise the right to demand extinction. First, the breach of duty of keeping property with care of good manager may be acknowledged if the use or rental of the retained article is not necessary for its preservation. And it is reasonable to judge whether or not it is necessary to use for its preservation based on whether it helps to preserve the retained article. In the case of rental, it is advisable to make a specific judgment based on the nature and condition of the object and social norms. Next, whether or not a new owner may exercise his right to demand the extinction of the right of retention must be judged in accordance with the intent of the regulations. According to the intent of the provisions of the Civil Code, it is desirable to interpret this right as a provision for terminating a person having a right of retention's possession when there is a risk of damage to the debtor or owner from the exercise of the right of retention. Therefore, the new owner can only demand the extinction of the right of retention if there is a risk of damage.