Supreme Court: "Cannot Claim Return Even If Building Occupancy Taken and Taken Back"

'Mutual Infringement of Possession' Does Not Allow Possession Recovery Claims

The Supreme Court has ruled that a person who unlawfully seizes a building occupied by another cannot exercise the civil law 'right to reclaim possession' to demand the return of the building, even if the original possessor unlawfully reclaims possession of the building.

This is the first ruling by the Supreme Court on the issue of 'mutual intrusion of possession,' which has been academically debated.

Mutual intrusion of possession refers to a situation where, for example, Mr. A, whose bicycle was stolen, forcibly reclaims his bicycle from Mr. B, who had been riding it for several months after stealing it. The question is whether Mr. B can exercise the right to reclaim possession against Mr. A and demand the return of the bicycle.

In academia, the majority view denies Mr. B's right to reclaim possession, arguing that even if it were recognized, Mr. A would ultimately exercise the right to reclaim possession or a claim for return based on ownership, rendering Mr. B's right ineffective and contrary to judicial economy. The Supreme Court cited the same reasoning.

According to the legal community on the 8th, the Supreme Court's Third Division (Presiding Justice Lee Heung-gu) upheld the lower court's ruling that dismissed the claim by real estate management company C against contractor D in an appeal regarding a building eviction lawsuit.

In October 2012, Mr. D contracted with a construction company to build an officetel in Cheongju, Chungbuk, and completed the final inspection but did not receive payment for the construction. Mr. D occupied the building to exercise a lien, demanding payment.

Later, the construction payment claim was transferred to company C in 2016. On May 23, 2019, the CEO of company C visited the building and had an argument with Mr. D over the lien issue, during which he assaulted him.

When the CEO returned to the building the next night, Mr. D felt threatened and left the building. Legally, from that point, company C became the possessor of the building.

On May 29, Mr. D returned with about 30 security personnel, broke windows with bricks, forcibly opened doors, expelled company C's employees, and reclaimed the building.

Company C filed a lawsuit demanding the return of the building, claiming that possession was unlawfully taken and requesting the building's return and damages under Article 204 of the Civil Act.

However, both the first and second instance courts rejected company C's claim as unjustified. The Supreme Court reached the same conclusion.

The Supreme Court regarded both the CEO of company C assaulting Mr. D to expel him and seize possession, and Mr. D reclaiming the building with security personnel, as 'intrusion of possession' under civil law. Intrusion means losing possession against one's will through theft, robbery, unlawful execution, etc.

Accepting company C's claim in such a situation would mean that if Mr. D filed the same lawsuit in return, it would have to be accepted, rendering the litigation itself futile.

The court stated, "If a possessor whose possession was unlawfully intruded upon by the other party reclaims possession from that party, even if the other party's claim to reclaim possession is accepted, it would be futile to recognize the other party's right to reclaim possession if the possessor can restore their possession by exercising the right to reclaim possession against the other's intrusion."

It added, "Therefore, even if the possessor's act of reclaiming possession does not constitute self-help under Article 209, Paragraph 2 of the Civil Act, it is reasonable to hold that, barring special circumstances, the other party cannot claim the recovery of possession under Article 204, Paragraph 1 of the Civil Act on the grounds that their possession was intruded upon."

A Supreme Court official stated, "This is the first ruling to establish legal principles regarding the permissibility of claims to reclaim possession in cases of so-called 'mutual intrusion of possession.'"

This content was produced with the assistance of AI translation services.