[2] Whether only a claim for the return of deposit on a deposit basis can be transferred definitely separately from the right of lease on a deposit basis by making the right to lease on a deposit basis continue to exist during the existence of the right to

[2] The right to lease on a deposit basis is a right to use and make profits from another person's real estate in accordance with the purpose of the right to lease on a deposit basis, and it is an element not to be separated from the right to lease on a deposit basis because the right to lease on a deposit basis is not established unless the right to lease on a deposit basis is prohibited from the act of establishment of the right to lease on a deposit basis. Thus, the right to lease on a deposit basis can be recovered from the capital paid as the right to lease on a deposit basis unless the right to lease on a deposit basis is prohibited from the act of establishment of the right to lease on a deposit basis. However, in the continuation of the right to lease on a deposit basis, the right to lease on a deposit basis

In light of the fact that the conflict between the parties is the principal form, if the defendant had already died before filing a lawsuit, the appeal filed against the plaintiff against the defendant is unlawful appeal filed against the deceased person as the other party, and its defect cannot be corrected, and thus, it shall be dismissed (see Supreme Court Decisions 81Meu53, Oct. 12, 1982; 93Nu9606, Jan. 11, 1994, etc.).

In light of the records, the plaintiff filed an appeal against the part concerning the defendant 5 among the judgment below. However, since it is obvious that the defendant 5 had already died before the lawsuit of this case was filed, the plaintiff's appeal against the defendant 5 against the defendant 5 is unlawful as it is filed against the deceased person as the other party, and it is obvious that the defects cannot be corrected.

2. Judgment on the Plaintiff’s remaining Defendants’ grounds of appeal

A. As to the First Claim

The lower court: (a) filed a lawsuit against Nonparty 1 for the first time on September 15, 191; (b) concluded a lease agreement with Nonparty 1 for the transfer of the right to lease on a deposit basis with Nonparty 3; and (c) concluded a lease agreement with Nonparty 1 for the first time on August 9, 198 and for the first time on August 9, 200 to Nonparty 1 for the first time on June 9; and (d) concluded a lease agreement with Nonparty 1 for the first time on June 1, 200 to Nonparty 9 to the Seoul High Court for the first time on June 9; (b) concluded a lease agreement with Nonparty 1 for the first time on a deposit basis with Nonparty 4 to Nonparty 9; and (c) concluded a lease agreement with the Defendant for the first time on a deposit basis with Nonparty 1 for lease on a deposit basis with the Defendant 1 for the first time on June 1, 195 to KRW 157 and KRW 97.

Based on such factual basis, the lower court determined that, on March 1, 1996, Nonparty Company and the Defendants concluded a contract to establish a lease on a deposit basis with respect to the instant building as of March 1, 1997, to substitute for the payment of lease deposit amounting to KRW 1,268,722,00, and the duration of the lease deposit with respect to KRW 1,268,72,000, and thereafter completed the registration of the lease on a deposit basis on August 14, 1996, Nonparty Company’s claim transferred to the Nonparty thereafter was not a claim for the return of lease deposit, but a claim for the return of lease deposit with respect to the instant building. The Plaintiff’s seizure and the entire claim also constituted a claim for the return of lease on a deposit basis for the instant building.

As examined in comparison with the evidence in the record, the recognition and judgment of the court below are just, and there is no error in the misapprehension of legal principles as to the right to lease deposit secured by the right to lease on a deposit basis or the right to lease on a deposit basis.

The grounds of appeal cannot be accepted.

B. As to Chapter 2

The right to lease on a deposit basis is a right to use or make profits from another person's real estate by paying the deposit money for lease on a deposit basis, and it is an element not to be separated from the right to lease on a deposit basis because the right to lease on a deposit basis is not established unless the right to lease on a deposit basis is prohibited from the act of establishment of the right to lease on a deposit basis. Since the right to lease on a deposit basis is allowed to recover the capital paid as the deposit money by disposing of the right to lease on a deposit basis, it is not allowed to transfer only the right to lease on a deposit basis separately from the right to lease on a deposit basis during existence of the right to lease on a deposit basis (see Supreme Court Decisions 66Da771 delivered on June 28, 196, 60Da850 delivered on July 5, 196, etc.).

The court below did not notify the non-party company of the rejection of the renewal of the right to lease on March 1, 1997 or between June and January 1, 1997 that the term of the right to lease on a deposit basis for the building of this case was not renewed without changing the terms or conditions. Meanwhile, the non-party company continued to occupy and use the building of this case even after the term of the right to lease on a deposit basis has expired, and the non-party company continues to exist until June 27, 1998, which ordered the non-party company to order part of the building of this case to the defendants after the expiration of the term of the right to lease on a deposit basis. After the non-party company did not have any evidence to deem that the non-party company agreed to the contract of the right to lease on a deposit basis or agreed to extinguish the right to lease on March 30, 1998, and transferred only the right to lease on a deposit basis separately from the right to lease on a deposit basis during the existence of the right to lease on a deposit basis is justified.

In addition, the Supreme Court Decision 97Da29790 delivered on November 25, 1997 held that the transfer of the right to lease on a deposit basis shall not be deemed to be valid where the plaintiffs made a special agreement to separate only the right to lease on a deposit basis from a third party and transfer the right to lease on a deposit basis to a third party as they continue to exist in the existence of the right to lease on a deposit basis while the right to lease on a deposit basis exists.

All of the arguments in the grounds of appeal are rejected.

3. Conclusion

Therefore, the appeal against Defendant 5 is dismissed, and all appeals against the remaining Defendants of the Plaintiff are dismissed, and the costs of appeal are assessed against the Plaintiff. It is so decided as per Disposition by the assent of all participating Justices who reviewed the appeal.

Supreme Court Shin-chul (Presiding Justice) (Presiding Justice)