1. Where a mortgage has been established as the object of chonsegwon, the mortgage cannot be executed as to the right to lease on a deposit basis because the right to use the right to lease on a deposit basis becomes extinct if the duration of chonsegwon expires, and the mortgagee shall seek the payment of the deposit money by exercising the subrogation right by means of seizure, collection order or all orders, or demanding a third party to demand a distribution in the compulsory execution procedure against the claim to return the deposit on a deposit basis (see, e.g., Supreme Court Decision 98Da31301, Sept. 17, 1999).

Where a mortgagee of chonsegwon exercises the right of subrogation for the claim for the return of lease on a deposit basis as above, the effect of the previous mortgage continues to exist in the claim for the return of lease on a deposit basis, which is the object of subrogation, and the right holder is entitled to obtain preferential reimbursement from other general creditors than other general creditors. Thus, even if, when the claim for the return of lease on a deposit basis was seized, the settlor of chonsegwon has the opposite claim against the mortgagee, and even if the opposite claim and the claim for the return of lease on a deposit basis are in offset, such circumstance alone cannot

However, the right to claim the return of lease on a deposit basis can be deemed to have already been scheduled to have been created from the time when the right to lease on a deposit basis was established. Thus, in cases where the settlor of chonsegwon already has a opposing claim against the person having chonsegwon at the time when the right to lease on a deposit basis was established and the repayment period for the opposite claim is at the same time as the repayment period for the right to claim the return of lease on a deposit basis or at the time when the repayment period for the opposite claim comes earlier, barring any special circumstance, the settlor

2. According to the reasoning of the judgment below and the record, D 105, 5, 25, 200, 60,000 won for the security of the deposit for lease while leasing the building of this case from the defendant, D 201, 10,100,000 won for the deposit for lease on April 30, 200 to April 29, 200, 10, 100,000 won for the deposit for lease on September 13, 2010, and 10,000 won for the deposit for lease on April 1, 200 to April 29, 201, 200, 200, 300,000 won for the first time for lease on September 14, 2010 to the defendant 10, 300,000 won for the first time for lease on the deposit for lease of this case, and 106,000,0000 won for the plaintiff.

Based on the above factual basis, the lower court determined that the instant chonsegwon was established to secure the claim for the return of the lease deposit under the lease agreement, and the lease deposit only guarantees the lessor’s claim arising out of the lease agreement, and thus, the Defendant, the settlor of chonsegwon, cannot set off against the Plaintiff, who exercised the subrogation right against the claim for the return of the lease deposit with the lease deposit against the lessee C.

3. However, we cannot accept the above judgment of the court below as it is.

In light of the above facts in light of the legal principles as seen earlier, where there exists a loan claim against the Defendant C at the time when the right to lease on a deposit basis was established, and the period of repayment of the claim arrives at the same time as or earlier than that of the claim for the return of lease on a deposit basis that will occur in the future, the Defendant may set off the above loan claim against the Plaintiff as the right to lease on a deposit basis with the right

Therefore, the court below shall deliberate on the existence of the loan claims asserted by the defendant, and the ex post facto relationship between the loan claims and the deposit money refund claims, etc., and determine whether to allow offset.

However, the defendant's counterclaim was rejected solely for the reasons stated in its holding. In so doing, the court below erred by misapprehending the legal principles on subrogation and offset, failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

Supreme Court Decision 2006Da29372, 29389 Decided March 13, 2008, which held by the court below, held that in the case where the mortgagee was unaware of the fact that the right to lease on a deposit basis was established for the purpose of securing the right to claim the return of lease deposit, the claim for overdue rent, management fee, damages, etc. arising from the lease agreement cannot be offset against the claim for the return of lease on a deposit basis with the automatic claim, and it is not appropriate to invoke the case differently.

4. Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justice Shin Shin Young-young

Justices Lee Sang-hoon

Justices Cho Jong-hee