A. For the plaintiffs:

1) The Defendants deliver each of the real estate listed in the separate sheet.

2) The Defendants shall pay 40,36,00 won each of them and 5% interest per annum from July 15, 2016 to August 25, 2016; 15% interest per annum from the next day to the date of complete payment; and 59,546 won per annum from May 21, 2016 to the date of complete delivery of real estate listed in the separate sheet.

B. The plaintiffs' remaining claims against the defendants are dismissed.

2. The total costs of the lawsuit are borne by the Defendants.

3. Paragraph 1(a) of this Article may be provisionally executed.

A. On June 19, 2008, Defendant 1 entered into a lease contract with Nonparty 1 and the attached list (hereinafter “instant real estate”) with respect to the real estate (hereinafter “instant real estate”) with a deposit of KRW 240 million and the lease period from August 20, 2008 to August 19, 2010 (hereinafter “instant lease contract”). Defendant 1 entered into a move-in report on August 8, 2008 and obtained a fixed date in the said contract.

B. On June 1, 2012, Nonparty 1 prepared a written confirmation of free residence with the purport that, in order to secure a loan to the Korea C&T Bank (hereinafter “Korea C&T Bank”), the mortgage on the instant real estate was established (the registration of creation of a prior mortgage on the same day was cancelled) and Defendant 1 and a person living together with Defendant 2, at the request of Nonparty 1, he would not exercise all rights regarding the lease agreement with the said bank.

C. On October 1, 2013, upon the application for voluntary auction based on the foregoing right to collateral security by the Korea C&T Bank, the voluntary auction on the instant real estate was commenced at Suwon District Court Decision 2013TAD 52867, and the Plaintiffs paid the successful bid price in the above auction procedure (hereinafter “instant auction procedure”), and completed the registration of ownership transfer on May 8, 2014.

D. Meanwhile, at the instant auction procedure on November 1, 2013, Defendant 1 reported the right pursuant to the instant lease agreement and demanded the distribution thereof. On June 13, 2014, Defendant 1 prepared a distribution schedule that distributes KRW 240 million to Defendant 1 on the date of distribution.

E. The Korea CTR Bank filed a lawsuit of demurrer against the said distribution schedule, and filed a lawsuit of demurrer against the distribution under this Court No. 2014Gahap8151, and among the above distribution schedule, the said decision became final and conclusive because both parties did not object to the said decision on the Reconciliation recommendation, the content of which is to delete KRW 240 million distributed to Defendant 1 from the said distribution schedule and to rectify the distribution of KRW 240 million to the Korea CTR Bank, and to rectify the distribution of KRW 240 million to the Korea CTR Bank.

F. On May 12, 2014, Plaintiff 1 ordered Defendant 1, who possessed the instant real estate, to file an order for the delivery of real estate with the competent court No. 2014Ma2032, but Defendant 1 filed an appeal (No. 2014Ra1217, this Court), thereby dismissing Plaintiff 1’s application for the delivery order, and the said order became final and conclusive.

G. The sum of the rent for the instant real estate from June 13, 2014 to June 12, 2015 is KRW 19,971,00, the aggregate of the rent from June 13, 2015 to May 20, 2016 is KRW 20,365,00, and the rent for the first day as of May 20, 2016 is KRW 59,546.

[Ground of recognition] without any dispute, Gap's evidence 1 through 10, Eul's evidence 1, 4 through 7, and 9, the result of an appraisal of rent by the trial appraiser non-party 3, the purport of the whole pleadings

2. Determination as to the cause of action

A. Claim for extradition of the instant real estate

According to the above facts of recognition, the Plaintiffs acquired the ownership of the instant real estate on May 8, 2014, and the Defendants occupied and used the instant real estate from August 8, 2008 to that date. Thus, the Defendants are obligated to deliver the instant real estate to the Plaintiffs, barring special circumstances.

B. Requests for restitution of unjust enrichment

According to the above facts of recognition, the Defendants are obligated to pay the amount of unjust enrichment calculated at a rate of 59,546 won each day from June 13, 2014 to May 20, 2016, as unjust enrichment equivalent to the sum of the unpaid rents, which the Plaintiffs seek after acquiring ownership from each of the Plaintiffs, (i) the Defendants, barring any special circumstance, are obligated to pay to each of the Plaintiffs unjust enrichment of 40,336,00 won (=19,971,000 won + 20,365,000 won), delay damages therefor, and the amount of unjust enrichment calculated at a rate of 59,546 won each day from May 21, 2016 to the completion date of delivery of the instant real estate.

3. Judgment on the defendants' assertion

A. The parties' assertion

1) The defendants' assertion

Defendant 1 had opposing power to possess the instant real estate until the deposit is returned to the Plaintiffs who are successful bidders, as in the instant auction procedure, since Defendant 1 was unable to have been paid the deposit at all. The Plaintiffs knew that there was both opposing power and preferential right to payment in the instant auction procedure due to Defendant 1’s report on rights and demand for distribution, and it is sufficiently anticipated that the Defendants may exercise the opposing power against the successful bidders within the extent of the amount that was not paid, in the event that the lessees are unable to receive dividends at the ordinary auction procedure. Furthermore, the Defendants’ written and quasi-written free residential confirmation against the Korea Sti Bank was prepared at the request of Nonparty 1, a lessor, and the creditors prepared the said free residential confirmation document, and this cannot be deemed as providing the Plaintiffs who are successful bidders with trust that they would not exercise the opposing power under the Housing Lease Protection Act.

2) The plaintiffs' assertion

The Defendants provided trust in determining the successful bid price by making a demand for distribution at the instant auction procedure, even though having prepared a written confirmation of gratuitous residence against the Korea C&T Bank, which is the right to collateral security, which is the right to collateral security, while hiding it. In addition, even though the auction court prepared a distribution schedule with the content that the deposit amount of KRW 240 million is distributed to Defendant 1, the Defendants did not receive the deposit amount of KRW 240 million by having the creditors prepare a written confirmation of free residence and comply with the settlement recommendation with the contents that give up their rights in the lawsuit of demurrer to distribution. Therefore, the Defendants’ assertion of opposing power against the Plaintiffs, who are the successful bidder, is not allowed in violation of the principle of trust and good faith due to an act impairing the stability of the auction procedure and predictability of interested parties.

B. Determination

According to the above facts, Defendant 1 entered into the instant lease agreement and completed the move-in report on August 8, 2008, and around that time, Defendant 1 received the instant real estate and the Defendants were deemed to have satisfied the requirements for counterclaim under Article 3 of the Housing Lease Protection Act. Thus, Defendant 1 may thereafter oppose the Plaintiffs who acquired the ownership of the said real estate in an auction procedure based on the right to collateral security established on the instant real estate.

However, the following circumstances are revealed by comprehensively taking account of the aforementioned evidence and the purport of oral argument, i.e., ① the process of auction regardless of the intention of the parties, and legal relationship between the parties should be uniformly determined by the externally revealed legal relationship. ② Defendant 1 made a report on rights and demand for distribution in the auction procedure of this case on the basis of the lease agreement, and the Plaintiffs were expected to exercise the right to preferential reimbursement right under the fixed date and agreed upon the bid price to be determined by the Seoul District Court. ③ The Defendants prepared a certificate of free residence for the Korea Telecommunication Bank, stating that “The Defendants would have no obligation and obligation arising from the lease agreement with the non-party 1, and would not assert any right to the said Bank,” and that “the aforementioned certificate of free residence was prepared by the non-party 1’s order to return the leased goods to the non-party 2 and the non-party 1’s non-party 3’s ruling that the above certificate of free accommodation had been prepared by the Seoul District Court.”

Therefore, the above assertion by the defendants is in violation of the good faith principle and cannot be accepted.

C. Sub-committee

The Defendants are obligated to deliver each of the instant real estate to the Plaintiffs. The Defendants are obligated to pay each of the Plaintiffs the unjust enrichment of KRW 40,336,00 and the Defendants’ unjust enrichment of KRW 59,546,00 each day from July 15, 2016, which is the day following the date of delivery of a copy of the application for amendment of the purport of the appeal at the trial, to the extent and the existence of the Defendants’ obligations and the scope thereof. From August 25, 2016, the date of issuance of the judgment at the trial, 5% per annum under the Civil Act until August 25, 2016, and damages for delay calculated by 15% per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment, and to pay the amount of unjust enrichment calculated by 59,546

4. Conclusion

Therefore, the plaintiffs' claims against the defendants are justified within the above scope of recognition, and the remaining claims are dismissed without merit. Since the judgment of the court of first instance is unfair with different conclusions, part of the plaintiffs' appeal is accepted and the judgment of the court of first instance is modified as above, it is so decided as per Disposition.

Judges Lee Jong-sung (Presiding Judge)