1. Summary of the original judgment

According to the reasoning of the order of the court below, the court below held that 00 million won was no longer than 10 million won before 193, and that 100 million won was no longer than 50 million won upon the lessee's request for auction of the above real estate, and that the lessee was no longer 50 million won upon the lessee's transfer of the above real estate to 200 million won after 193. The court below held that the lessee's transfer of the above real estate was no longer likely to have agreed upon the lessee's transfer of the above real estate, and that the lessee's transfer of the above real estate was no more than 50 million won upon the lessee's transfer of the above real estate. Thus, the court below's decision that the lessee's transfer of the above real estate to 300 million won was no longer effective due to the lessee's transfer of the above real estate, and that the lessee's transfer of the ownership of the above real estate was no more than 160 million won upon the lessee's expiration of the lease agreement.

2. Determination

However, while the transfer of the status of a lessor in a lease agreement entails the transfer of the duty of a lessor, the method of performing the duty of a lessor is not particularly different by whom the lessor is the owner of the object, and is almost entirely able to perform the duty in the position of a lessor, and even from the standpoint of a lessee, it may be more favorable for a new owner to recognize the succession of the duty in the position of a lessee. Therefore, the transfer of the status of a lessor can be made only by a contract with a lessor, as the new owner may be more favorable for a lessee. In this case, in accordance with the principle of equity and the principle of good faith that a lessee cannot force a lessee to succeed to the status of a lease unless the lessee wishes, so he/she may be exempted from the restraint of the lease relationship that a lessee succeeds by raising an objection, and the relationship with

According to the facts and records established by the court below, on May 8, 1996, the above Hoho Development decided to succeed to the status of the lease contract of this case, including the obligation to return the lease deposit against the re-appellant, and sold it to ○○○○. On the 14th of the same month, the re-appellant acquired the registration of transfer of ownership on the 14th of the same month, and on the 24th of the same year, the re-appellant did not agree to allow Hoho Development to succeed to the status of the lessor. It can be recognized that the transfer of the ownership of the real estate to ○○○○○ without the consent of the re-appellant is a breach of contract and the notification was delivered to the Hoho Development around that time. Thus, the lease contract between Hoho Development and the re-appellant was lawfully terminated by the declaration of the termination of the lease contract, which does not want to succeed to the lease, and therefore, the auction court is obligated to return the lease deposit of this case to the re-appellant.

Nevertheless, the court below erred in the misapprehension of legal principles as to the termination of a lease contract by a lessee due to the transfer of the status of a lessor, and therefore, the ground of appeal is with merit, since the lease contract of this case between the re-appellant and the above-appellant still continues to remain in force despite the declaration of termination of the lease contract of this case. Thus, the court below determined that the above-mortgage claim for return of lease deposit, which is the secured claim of the above-mortgage mortgage, was not yet due and payable, which is the secured claim of this case.

3. Therefore, the order of the court below shall be reversed and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Cho-Un (Presiding Justice)