[증서무효확인청구사건][고집1981민,330]
Whether the claim for the confirmation of existence of the right of lease against a third party other than the lessor is legitimate
A lessor’s claim for the confirmation of existence of a right of lease against a third party, not the defendant, is unlawful as there is no benefit of confirmation.
Article 228 of the Civil Procedure Act
Plaintiff
Defendant
Yeongdeungpo-gu Seoul District Court (80 Gohap458)
The original judgment shall be revoked.
The plaintiff's objection suit is dismissed.
All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.
It is confirmed that the right of lease for about 12 square meters in the new-dong (number omitted) store in Jung-gu Seoul Metropolitan Government is the Plaintiff.
Litigation costs shall be borne by the defendant.
The original judgment shall be revoked.
The plaintiff's claim is dismissed.
All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.
On October 23, 1979, when the plaintiff set the lease deposit amount of KRW 9,00,000 from the non-party to lease the store stated in the purport of the claim from the non-party with the amount of KRW 2,00,000 among the deposit money to be paid to the above non-party, the plaintiff borrowed the loan from the defendant and paid it to the non-party, and secured the plaintiff's debt for the loan to the defendant, the plaintiff prepared the above lease contract with the non-party and prepared the name of the lessee under the name of the defendant. The defendant asserted that he was the lessee of the above store, and the plaintiff filed a claim suit against the non-party against the non-party, claiming that he was the lessee of the above store, and the plaintiff deposited the loan with the principal and interest of the above loan on March 3, 1980.
Ex officio, the right of lease is a claim that the lessee is competent to file a claim for action or omission under the lease contract with the lessor, and barring special circumstances, barring any circumstances, the lessee cannot file a claim for action or omission against the person other than the lessor, and in the lease contract, it is unclear whether or not the plaintiff is entitled to use or benefit from the contractual term in relation with the lessor, and it is not clear whether or not the plaintiff is entitled to use or benefit from the contractual term in relation with the lessor, and in relation with the other party than the lessor, it is not clear that the plaintiff has the right of lease as the lessee in relation with the lessor. Therefore, barring special circumstances, the plaintiff does not have a benefit to seek confirmation in relation to the right of lease against the defendant without the non-party who is the lessor as the party to the claim, and there is no benefit to seek confirmation in relation to the right of lease against the defendant only on the premise that the plaintiff is the above lessee (the record verification result of the review by the appellate court can be recognized as continuing in the appellate court). It is sufficient to present that there exists a separate interest as the plaintiff.
Therefore, the plaintiff's objection lawsuit shall be dismissed in an unlawful manner, and since the original judgment with different conclusions is unfair, the plaintiff's objection lawsuit shall be dismissed, and the costs of lawsuit shall be borne by the plaintiff who has lost both the first and second trials, and it is so decided as per Disposition.
Judges Kim Sang-won (Presiding Justice)