[사해행위취소][공2005.5.1.(225),644]
[1] Whether the right to lease on a deposit basis can be transferred after the expiration of the term of the right to lease on a deposit basis under the Civil Act (affirmative)
[2] The case holding that it cannot be viewed that a notice or consent with a fixed date was given to the transfer of the right to lease on a deposit basis on the sole basis of the fact that the contract for lease on a deposit basis and the additional registration of the transfer of the right to lease on a deposit basis after the expiration of the lease on a deposit basis
[1] The right to lease on a deposit basis under the Civil Act, which has completed the registration of the establishment of a right to lease on a deposit basis, has both the nature of the right to lease on a deposit basis and the nature of the right to lease on a deposit basis. If the duration of the right to lease on a deposit has expired, the right to lease on a deposit basis has expired as a matter of course without cancellation of the registration of the right to lease on a deposit basis, and the registration of the right to lease on a deposit basis has continued until the return of the right to lease on a deposit basis within the scope of the right to lease on a deposit that guarantees the right to lease on a deposit basis. As such, as long as the duration has expired, the right to lease on a deposit with the original right to lease on a deposit basis has extinguished and the right to lease on a deposit remaining after the right to lease on a deposit is transferred to a third party, as well as the right to return the deposit on a deposit basis, the right to lease on a deposit can not be set up
[2] The case holding that the seizure of the claim for the return of lease on a deposit basis, which is a third party, cannot be asserted against all creditors on the ground that the registration of the transfer of lease on a deposit basis or the additional registration of the transfer of lease on a deposit basis was made after the expiration of the lease on a deposit basis.
[1] Articles 303, 306, 449, and 450 (2) of the Civil Act / [2] Articles 303, 306, and 450 (2) of the Civil Act
Plaintiff (Attorney Lee Ho-hoon, Counsel for plaintiff-appellant)
Defendant 1 and one other (Seoul General Law Firm, Attorneys Presiding over- others, Counsel for defendant-appellant)
Daejeon High Court Decision 2002Na8344 delivered on June 20, 2003
All appeals are dismissed. The costs of appeal are assessed against the Defendants.
The Defendants’ grounds of appeal are examined together (to the extent of supplement in case of supplemental appellate brief filed after the lapse of the submission period).
The right to lease on a deposit basis under the Civil Act, which has completed the registration of the establishment of a right to lease on a deposit basis, is not concurrently characterized by the nature of the right to lease on a deposit basis, and the right to lease on a deposit basis is naturally extinguished even without cancellation of the registration of the right to lease on a deposit basis if the duration of the right to lease on a deposit basis expires without cancellation of the registration of the right to lease on a deposit basis, and the registration of the right to lease on a deposit basis remains effective until the return of the right to lease on a deposit basis within the scope of the right to lease on a deposit that guarantees the right to lease on a deposit basis. As such, as long as the right to lease on a deposit has ceased to exist as the expiration of the duration, the right to lease on a deposit basis can be transferred to a third party along with the right to return the deposit on a deposit basis, which is the right to lease on a deposit basis. However, unless the right to lease on a deposit has been transferred by a certificate with a fixed date
In light of the records cited by the court of first instance, Defendant Yangyang Construction Co., Ltd. (hereinafter referred to as “Defendant Yangyang Construction”) concluded an agreement on the transfer of real estate between Defendant Yangyang Construction Co., Ltd. (hereinafter referred to as “Defendant Yangyang Construction”) on February 16, 200 with Co-Defendant Lee Dong Construction Co., Ltd. (hereinafter referred to as “Dong Yangdong Construction”), and concluded an agreement on the transfer of real estate 5,00,00 and the transfer of real estate 70,000,000 won to the extent of 7,000,000,000,000 won and 7,000,000,000 won and 7,000,000 won and 7,000,000,000 won and 7,000,000,000 won and 7,000,000 won, 7,000,000 won and 7,00.
In light of the above facts and the legal principles as seen earlier, the right to lease on a deposit basis of the government building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building site building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building site building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building building
Meanwhile, the Defendants alleged in the grounds of appeal that the claim for the return of the deposit money in this case should be deemed to have been extinguished by the conclusion of the agreement on the lease contract in this case and the new real estate lease contract. However, in light of the relationship between Defendant 1 and the government building and the Chungcheong Construction, the agreement on the lease contract in this case and the continuous possession and use relationship of the real estate in this case before and after the conclusion of the new real estate lease contract, and other various circumstances indicated in the records, the court below's decision that the substance of each of the contracts in this case between Defendant Hanyang Construction and Defendant 1 and the government building in this case is to transfer the claim for the return of the deposit money in this case is not justified, and therefore the grounds of appeal on this part cannot be accepted.
Therefore, all appeals by the Defendants are dismissed, and the costs of appeal are assessed against the losing parties. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Jae- Jae (Presiding Justice)