(영문) 서울중앙지방법원 2016. 10. 28. 선고 2016나40124 판결[임대차보증금][미간행]
Reference Non-Life Insurance Co., Ltd. (Law Firm Hongk, Attorneys Yoon-sung et al., Counsel for defendant-appellant)
Defendant (Law Firm Shin, Attorney Lee Young-ju, Counsel for defendant-appellant)
October 21, 2016
Seoul Central District Court Decision 2015Da5329435 Decided June 24, 2016
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 98,400,000 won with 15% interest per annum from the day following the service date of a copy of the complaint of this case to the day of complete payment.
1. The key issue of the instant case is whether the Defendant, the lessor of the instant apartment, sells the instant apartment to the Nonparty, who is the lessee, has extinguished the Nonparty’s claim for the refund of the instant lease deposit against the Defendant, or thereby has changed the Plaintiff’s interest, which is the pledgee of the claim for the refund of the lease deposit of this case. The conclusion of the instant court cannot be deemed to have extinguished the Nonparty’s claim for the return of the lease deposit of this case due to the sales contract of the instant apartment, or has changed the Plaintiff’s interest, which is the pledgee. The content of the reasoning is as stated in the reasoning of the judgment of the first instance except for adding the following two, and thus, it is cited as it is in accordance with the main sentence of
2. Meanwhile, in light of the legal principles of Supreme Court Decision 2015Do5665 Decided April 29, 2016, the Plaintiff asserts that the Plaintiff, a pledgee, should be deemed as having been able to exercise his/her right to claim directly against the Defendant, who is the garnishee.
However, the above Supreme Court decision cited by the plaintiff is that even if the pledger, who is a lessee of an apartment, has received repayment of a claim (right to refund for lease deposit) which is the object of the pledge from the lessor who sells the apartment to a third party while cancelling and leaving the lease contract, it cannot be said that the pledgee's person who administers another's business in relation to the pledgee's duty and did an act in violation of his duty, thereby causing damage to the pledgee or causing danger of damage to the pledgee, and the pledgee still still has the right to exercise the pledge against the lessor, and therefore, it does not constitute a crime of breach of trust inasmuch as the pledgee's right to return the lease deposit still has a different issue from the case where the lessee takes over the duty of the lessor, without extinguishing the claim to return the lease deposit.
3. Therefore, the judgment of the court of first instance is justifiable, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.
Judges Kim Sung-soo (Presiding Judge)