2. The costs of lawsuit shall be borne by the Plaintiff.

A. On March 6, 2012, the Nonparty leased the lease deposit amount of KRW 110,000,000 from the Defendant (location omitted) apartment ○○○○-dong (hereinafter “instant apartment”).

B. On March 13, 2012, the Nonparty borrowed KRW 82,00,000 from the Plaintiff as a security loan for the lease deposit. In this case, the Nonparty established a pledge against the Plaintiff regarding KRW 98,400,000 out of the security deposit for the lease deposit of the instant apartment. The Defendant agreed to the said pledge against the Plaintiff, and decided to directly return the lease deposit equivalent to the said principal and interest of the loan within the amount set forth by the pledge upon the repayment of the lease deposit due to the expiration of the lease term.

C. On June 30, 2012, the Nonparty and the Defendant concluded a sales contract with the Nonparty to sell the instant apartment in KRW 155,000,000 with the Nonparty, and on July 2, 2012, the Defendant completed the procedure for the registration of ownership transfer with respect to the instant apartment against the Nonparty.

[Ground of recognition] Unsatisfy, Gap evidence 1 to Gap evidence 6

2. Summary of the parties' arguments

A. The plaintiff's assertion

The Defendant approved a pledge agreement between the Plaintiff and the Nonparty. Therefore, the sales contract between the Nonparty and the Defendant is null and void as the act of extinguishing the right under the pledge or impairing the Plaintiff’s interest, which is the pledgee. The right of lease, which is the object of the pledge, is not extinguished by confusion. Ultimately, in the relationship between the Plaintiff and the pledgee, the Defendant is still liable to pay the Plaintiff the amount of the instant claim directly as it is the lessor, i.

B. Defendant’s assertion

Since the non-party has an opposing power under the Lease Protection Act, the status of the lessor was succeeded to the non-party, and the defendant is no longer obligated as the lessor.

3. Determination

The key issue of this case is whether the right of pledge cannot be extinguished without the consent of the pledgee, or any change that damages the rights of the pledgee (Article 352 of the Civil Act). Therefore, the issue of this case is whether the claim to refund the security deposit is extinguished due to the sale and purchase of the apartment of this case, or the change that damages the interests of the pledgee,

Article 3(3) of the Housing Lease Protection Act provides that a transferee of a rental house which is the object of a lease that meets the requirements for counterclaim under Article 3(1) of the same Act shall be deemed to succeed to the status of a lessor. This is deemed to be a provision of obligatory succession under law. Therefore, in the event that a rental house is transferred, the transferee succeeds to all the rights and obligations under the lease contract of a lessor in combination with the ownership of a house, and as a result, the transferee is exempted from the obligation to return the deposit, and the transferor is exempted from the obligation to return the deposit to a lessee by withdrawing from the lease relationship (see Supreme Court Decision 2011Da49523, Jan. 17, 2013, etc.). In this case, the fact that the Nonparty has an opposing power under the Housing Lease Protection Act is not a dispute between the parties, and in light of the aforementioned legal principles, the Nonparty succeeds to the status of a lessor

As can be seen, in cases where the ownership and the right of lease on real estate vests in the same person, the right of lease should be extinguished by confusion. However, if the right of lease meets the requirements for counterclaim, it shall be deemed substantially the same as the limited real right, and the proviso of Article 191(1) of the Civil Act, which is an exception to the principle of extinguishment of real right due to confusion, should be applied mutatis mutandis. Therefore, if the right of lease satisfying the requirements for counterclaim becomes the object of a third party’

According to the above review, since the sale of the apartment of this case cannot be deemed to have extinguished the claim for the return of the lease deposit of the non-party or brought about changes to the plaintiff's interest, the sale of the apartment of this case cannot be deemed to have been null and void as it violates Article 352 of the Civil Code.

On the other hand, the plaintiff seems to have asserted that the obligor to return the lease deposit still should be the defendant on the ground of the above confusion, but in the case where the right of lease is exceptionally deemed not extinguished in the doctrine of confusion, it does not mean that "the ownership and the right of lease shall not belong to the same person, but shall not belong to the same person and shall not be extinguished."

4. Conclusion

Therefore, the claim of this case is dismissed as it is without merit.

Judges Cho Jae-il