Attorney Kim Tae-hee, Counsel for the plaintiff-appellant

2. KimB2 (52 years old, female);

[Judgment of the court below]

2. The costs of lawsuit are assessed against the Defendants.

3. Paragraph 1 can be provisionally executed.

The following facts are not disputed between the parties, or are recognized by Gap evidence 1, 2, 3-1, 3-2, 4, 1, 2-1, 3-2, 3-4, and 2-1, 2, 3-4, 3-3 and 4, and the whole purport of the arguments as a result of the appraiser Kim C1's appraisal.

(a) Conclusion of a lease contract and new construction of buildings;

1) On February 17, 2005, the Plaintiff and the Defendants entered into a lease agreement with the terms of leasing the instant land (hereinafter referred to as “the instant lease agreement”) with the view to constructing a new building on the part of 0,000,000,000, monthly rent of 4,000,000 (excluding value-added tax), and from February 24, 2005 to April 27, 2005, with the intention of operating a restaurant by constructing a new building on the part of 278 square meters, Busan Shipping Daegu-dong, Busan, Busan, Busan, the joint ownership of the Defendants (hereinafter referred to as “instant land”).

2) 원고는 건축주 명의를 피고들로 하여 2005. 8. 30.경 원고의 비용으로 그 지상에 철근콘크리트구조 철근콘크리트지붕 2층 제2종근린생활시설(일반음식점) 1층 159.44㎡, 2층 64.51㎡(이하 '이 사건 건물'이라고 한다)를 신축한 후 2006. 2. 28. 피고들 공동명의로 소유권보존등기를 경료하였고, 그곳에서 2009. 6. 7.까지 ‘◇'라는 상호로 음식점을 운영하였다.

3) The Plaintiff and the Defendants agreed that the lessee shall bear the costs of construction and the registration of ownership in the name of the lessor, and the lessee shall not claim the ownership, all other expenses, premium, etc. after the expiration of the contract period (hereinafter referred to as the “instant agreement”).

B. On May 23, 2005, the Plaintiff and the Defendants (hereinafter referred to as “reconciliation prior to the filing of the lawsuit”) concluded settlement prior to the filing of the lawsuit by Busan District Court 2005No. 248 (hereinafter referred to as “reconciliation prior to the filing of the lawsuit”), and among the provisions of the Reconciliation, the Plaintiff also ordered the Defendants to order the instant building on April 26, 2009.

C. The instant lease agreement was terminated on April 26, 2009. The Defendants deposited KRW 38,541,020,020, which was the balance obtained by deducting rents, public charges, etc. from the rental deposit deposit amounting to KRW 50,000,00 from the Busan District Court Branch Branch Branch of the Busan District Court in June 12, 2009. On June 12, 2009, the Defendant deposited the payment of KRW 38,541,020, which was the remainder after deducting rents, public charges, etc. from the rental deposit amounting to KRW 50,00,00. On June 16, 2009, the instant protocol of settlement prior to the filing of the lawsuit was executed as the executive title, and received the delivery on

(d) Exercising a right to demand ground water purchase;

On the other hand, the copy of the complaint dated April 27, 2009, stating the Plaintiff’s expression of intent to exercise the right to purchase the instant building, was served on the Defendants on May 7, 2009. The appraisal price of the instant building around that time is KRW 157,212,90.

2. Determination as to the cause of action

According to the above facts, barring any special circumstance, the sales relationship between the plaintiff and the defendants on the building of this case newly constructed by the plaintiff existing on the land of this case as of May 7, 2009. Thus, the defendants, the land lessor, are obligated to pay damages for delay at each rate of 20% per annum as stipulated in the Civil Act from May 8, 2009 to November 11, 2009, the day following the day when the copy of the complaint of this case sought by the plaintiff was delivered to the defendants, as the sale price of this case, which is the market price of this case which is difficult to exercise the right to purchase to the plaintiff who had acquired the building of this case, and from the next day to the day of complete payment.

3. Judgment on the defendants' assertion

A. Summary of the defendants' assertion

The Defendants: (a) the instant building was acquired by succession from the Plaintiff under the instant lease agreement; (b) the Defendants acquired ownership by completing the registration for preserving ownership in the name of the Defendants; (c) it is not owned by the Plaintiff; and (d) the Plaintiff leased the instant building and reverted ownership to the Defendants by entering into the instant lease agreement; and (c) given that the Plaintiff given up the right to demand ground purchase, upon the expiration of the lease term, agreed not to claim ownership, general expenses, premium, etc.; (d) the instant lease agreement was for a relatively short period of 48 months, and the deposit and monthly rent were relatively low in light of the market price of the instant land; (e) the Plaintiff’s above agreement on the waiver of the right to demand ground sale is valid, and thus, the Plaintiff cannot exercise the right to demand purchase against the Defendants, and (e) the Plaintiff’s right to demand purchase by exercising the right to demand purchase on the premise that the Plaintiff is the owner of the instant building is contrary to the res judicata effect of the instant lawsuit, and thus, the instant claim is dismissed.

B. Determination

1) Determination on the assertion on the acquisition of ownership

At the time of the conclusion of the instant lease agreement, the Plaintiff and the Defendants agreed to have ownership and registration of a building newly constructed on the instant land under the name of a lessor. The fact that the Plaintiff constructed the instant building under the name of the owner as the Defendants and completed the registration of ownership preservation under the joint name of the Defendants on February 28, 2006 after the Plaintiff constructed the instant building under the name of the owner as the Defendants is as seen earlier.

However, barring any special circumstance, a person who newly constructed a building with his own cost and effort shall acquire the ownership of the building, regardless of whether the construction permit was made in the name of another person, so if the title holder of the registration of ownership preservation does not construct the new building, the presumption of the right to the registration is broken, and if the title holder of the registration does not build the new building, the title holder shall prove the fact that he has lawfully acquired the ownership of the building (see, e.g., Supreme Court Decision 95Da30734, Jul. 30, 1996). As seen earlier, insofar as it is found that the Plaintiff constructed the new building at his own expense, the presumption of the registration of ownership preservation, which was made in the name of the Defendants,

However, as seen below, the agreement of this case is an agreement to exclude the lessee from the right to demand the purchase of the ground property under Article 643 of the Civil Code and is unfavorable to the lessee. Thus, it shall be deemed null and void under Article 652 of the Civil Code. There is no other evidence to acknowledge that the Defendants succeeded to the ownership of the building of this case from the Plaintiff. Thus,

2) Determination as to the assertion to waive the right to demand a ground

A) The provision of Article 643 of the Civil Act regarding the lessee’s right to demand purchase is a mandatory provision, and an agreement contrary to this provision that is unfavorable to the lessee is null and void pursuant to Article 652 of the Civil Act. The issue of whether an agreement is unfavorable to the lessee should first be determined by the terms and conditions of the agreement in question, but if special circumstances can be acknowledged that the lessee cannot be deemed disadvantageous to the lessee in substance by comprehensively taking into account the details and circumstances of the conclusion of the agreement, it shall be deemed that the said provision does not conflict with the said provision (see Supreme Court Decision 96Da4543, Apr. 8,

B) Unless there are special circumstances, the instant agreement between the Plaintiff and the Defendants is an agreement to exclude the Plaintiff from claiming the purchase of the Plaintiff’s ground property, which is unfavorable to the lessee under Article 652 of the Civil Act. Thus, it is null and void under Article 652 of the Civil Act. As to whether the instant agreement actually exists, the Plaintiff and the Defendants entered into a lease agreement with the term of 48 months, lease deposit amount of 50 million won, monthly rent of 4,000 won, and monthly rent of 4,000,000 won with respect to the instant land as seen above. However, the said recognition alone cannot be readily concluded as a security deposit and monthly rent in light of the market price of the instant land, and there is no other evidence to acknowledge it (In light of the appraiser Kim C1’s appraisal result, it is difficult to view that the monthly rent of the instant land was a lease agreement of 4,069,620 (lease deposit of 50,000,000 won, and there is no special circumstance to view that it is any difference between the present price of the instant lease agreement.

Therefore, it is reasonable to deem that the instant agreement under the instant lease agreement is null and void. Therefore, the Defendants’ assertion is without merit.

3) Determination as to the assertion that the reconciliation prior to the filing of a lawsuit goes against res judicata

A) Although the protocol prior to the filing of a lawsuit has the same effect as that of the final and conclusive judgment, res judicata between the parties takes effect, the res judicata of the final and conclusive judgment is included in the text of the judgment, i.e., the conclusion of the judgment on the existence or absence of the alleged legal relations, and does not affect the existence or absence of the legal relationship that is the premise stated in the reasoning of the judgment (see, e.g., Supreme Court Decisions 9Da55472, Feb. 25, 200; 84Meu1792, Aug. 19, 1986).

B) In light of the evidence No. 2, it is evident that the effect of res judicata on the settlement prior to the filing of the instant lawsuit does not extend to the existence or absence of the right of claim for delivery, and it does not affect the judgment on the existence or absence of ownership of the Plaintiff’s building in the instant case, even if the settlement prior to the filing of the lawsuit is established and the delivery execution is completed, insofar as the content that affirms that the instant building is owned by the Defendants is included in the reasons for the protocol prior to the filing of the lawsuit, but it is not indicated in the terms of the reconciliation clause.

Therefore, there is no reason to believe that the plaintiff's lawsuit of this case conflicts with the res judicata of the reconciliation prior to the lawsuit of this case.

4. Conclusion

Therefore, the plaintiff's claim of this case against the defendants is justified and it is so decided as per Disposition.

Judge Lee Dong-dong

Judges, fixed number of judges, and persons unable to affix their names and seals;

The presiding judge