유치물 소유자의 동의 없는 무단임대행위를 이유로 한 유치권 소멸청구 -대법원 2023. 8. 31. 선고 2019다295278 판결의 검토-

The defendant, the lien holder, leased the retained article to a third party without the consent of the owner of the property, in breach of Article 324, Paragraph 2 of the Civil Act, and received it back, 4 years and 4 months thereafter. The ownership of the property was subsequently transferred to the plaintiff, who demanded the delivery of the property to the plaintiff itself. In the 2019na46459 decision of Busan District Court issued on November 14, 2019 (hereinafter referred to as the Judgment of Lower Courts), it was ruled that the plaintiff could not obtain the extinction of the right of retention because the defendant’s breach of the duty of care had occurred before the plaintiff acquired the ownership of the property. The Supreme Court's decision 2019Da295278 (hereinafter referred to as the Supreme Court decision) issued on August 31, 2023 held that a claim for extinction of the right of retention in Article 324 of the Civil Act constitutes a sanction for a lien holder’s breach of the duty of care as a faithful manager and protects the interest of the debtor, or the owner of the property. According to the Supreme Court, unless there are special circumstances, a third party who acquired the ownership of the retained article after the property had been leased in breach of Article 324, Paragraph 2 of the Civil Act may also file a claim for the extinction of the right of retention. Furthermore, based on this reasoning, it was held that the defendant's right of retention was effectively extinguished when the plaintiff expressed its intent to the defendant to demand the extinction of the right of the retention. Therefore, the Supreme Court ruled that the defendant should deliver the property to the plaintiff, and partially reversed the trial court decision and remanded it. In order to determine the reasonableness of the Supreme Court decision, this article conducted the research in the following sequence. First, it was examined as to whether a person who has acquired the ownership of the property after the lien holder's unauthorized lease of the property has ended, may file a claim for extinction of the right of retention against the lien holder who had leased the property without the owner's consent in breach of Article 324, Paragraph 2 of the Civil Act. To this end, this article examines the debate in Korea regarding claims for the extinction of the right of retention. To put it in an international context, this article also explores the debate in Japan on the claims for the extinction of the retention right, which had the greatest influence on the discussion on the issue in Korea. Furthermore, this article compared and examined the status of discussions in Korea on claims for the extinction of the right of retention, as well as the debate in Korea and other countries regarding the claim for termination of superficies. Second, it was examined as to whether if a lien holder receives unjust enrichment by using the retained article in breach of the duty of care of a faithful manager, the unjust enrichment may be returned only to the party who was the owner of the property at the time of the breach. For this purpose, this article differentiated among cases where a retained article is used for its preservation, where a retained article is leased to another party, and where an owner of the property is changed. In each case, it was examined whether a lien holder's obligation to return unjust enrichment would be recognized and, if such obligation is recognized, what would be the scope of the return.