2013Na76682 Lease Deposit

A person shall be appointed.

Law Firm ○, Attorneys ○○-○, Counsel for the defendant-appellant

A person shall be appointed.

Suwon District Court Decision 2013Gahap1624 Decided November 6, 2013

June 20, 2014

July 25, 2014

1. The part against the defendant in the judgment of the court of first instance is revoked.

2. The defendant shall pay 10 million won to the plaintiff jointly with C.

3. All costs of the lawsuit shall be borne by the Defendant.

4. Paragraph 2 can be provisionally executed.

The plaintiff is the same as the disposition (the plaintiff reduced the purport of the claim in the appellate court).

1. Basic facts

On January 17, 201, the Defendant concluded a lease agreement (hereinafter referred to as the “lease Agreement”) with the Plaintiff and C, as a representative of C on January 17, 201, to set the lease deposit amount of KRW 110,000,000 won, monthly rent of KRW 400,000,000 from February 23, 201 to February 22, 2013.

[Grounds for Recognition] No dispute, Gap evidence 1-1, Eul evidence 1, the purport of the whole pleadings

2. Claims for joint liability for the repayment of lease deposit;

A. The party's assertion

The plaintiff asserts that the defendant and C leased the apartment of this case to the plaintiff on the behalf of the defendant as the agent of C in order to raise the cost of marital life, etc., and received the lease deposit from the plaintiff mainly. Such an act constitutes "the case where one of the married couple did a legal act with a third party with respect to the daily home affairs," and that the defendant also is jointly and severally liable with respect to the obligation to return the lease deposit against the plaintiff.

As to this, the Defendant asserts that C’s act of leasing the Plaintiff does not constitute a juristic act related to daily home affairs, and even if not, the Plaintiff concluded a sales contract to purchase the instant apartment with C, and decided to substitute the payment of KRW 110 million for the lease deposit return claim. Therefore, C’s obligation to return the lease deposit against the Plaintiff was already extinguished.

B. Standard for determining whether a case constitutes daily home affairs

A juristic act related to a common home under Article 832 of the Civil Act refers to a juristic act which is ordinarily necessary for a couple’s community to lead a common life. The contents and scope of a juristic act are determined by the community’s living structure, degree, and the community’s living place of the couple. In determining whether a specific juristic act at issue concerns a couple’s common home life, it shall be determined according to the social norms by comprehensively taking into account objective circumstances, such as the kind and nature of the juristic act, and the subjective intent and purpose of the person in charge of family affairs, and actual living conditions, such as the couple’s social status, occupation, property, and revenue capacity (see Supreme Court Decision 97Da31229 delivered on Nov. 28, 197). In addition, if a juristic act at issue is for the purpose of raising a common life of the couple, taking into account the amount, purpose of borrowing money, actual expenditure, and other circumstances, it shall be deemed that it belongs to a family affairs company (see Supreme Court Decision 98Da46877 delivered on Mar. 9, 199999).

C. Acknowledgement 1) Payment of the lease deposit of this case

At the time of the lease of this case, the Plaintiff confirmed that the Defendant was the husband of C (hereinafter referred to as “Defendant and C”) and was duly authorized by C to conclude the lease agreement on the apartment of this case under his/her name and receive the deposit money, etc., and entered into the lease of this case with the Defendant. As determined by the lease of this case, the Plaintiff remitted the sum of KRW 00,000,000 to the Agricultural Cooperative Account in the name of the Defendant (Account Number: 00-00 - 0000 - 000,000; hereinafter the same shall apply) on January 17, 2011, KRW 3 million,00,000 on January 25, 201, KRW 200,000 on February 7, 201, KRW 500,000 on February 23, 2011, KRW 11,000,000.

In addition, around the time of the lease of this case, the Defendant couple resided in the ○○○○○○○○, ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ (in this case, the delivery to the Defendant couple was made to the Defendant couple), and the apartment was registered for ownership transfer in the name of the Defendant couple. 2) Use of the lease deposit money, etc.

On January 17, 201, the date of transferring the Plaintiff’s lease deposit to the account used by the Defendant husband and wife for the management of living expenses, the amount of deposit deposited up to KRW 242,821,530,00,000,000 from that time to June 30, 201, was KRW 127,982,59,000,000,000,000,000 from June 30, 201, including the lease deposit for the Plaintiff’s payment, and the rent for the Defendant’s real estate. However, the amount of loan from the payment was withdrawn and used in excess of the instant lease deposit as of June 30, 201, as of June 30, 201.

Examining the details of the payment of the No. 378,527,90 won in the name of the Defendant’s husband and wife for the purpose of the repayment of the loan for the apartment of this case. However, the payment was made in the name of KRW 1,0250,00 in the name of the Defendant’s husband and wife, KRW 20,830,29 in the name of the payment of the credit card for the use of the Defendant’s husband and wife, KRW 8,383,510 in the name of the Defendant’s children’s children, KRW 378,378,378,527,980 in the name of the Defendant’s husband and wife’s residence, KRW 7,715,00 in the name of the Defendant’s cash withdrawal, KRW 210,00 in the name of the Defendant’s real estate brokerage office, KRW 68,549,94 in the name of the Defendant’s loan for the apartment of this case.

3) The sales consultation of the instant apartment due to the aggravation of the financial condition of the Defendant couple

On November 15, 2012, the Plaintiff, by telephone, sent notice to the Defendant husband and wife to the effect that “In the instant apartment before February 2013, the Plaintiff would have resided in the instant apartment before the maturity of the instant lease term, and would return the lease deposit upon the termination of the lease term.”

Accordingly, on November 28, 2012, the Defendant couple sent to the Plaintiff an electronic mail indicating that “The Defendant couple has a bad financial standing with the wind that the Defendant couple lost in the lawsuit against the cancellation of the sales contract for another apartment, and due to that, seizure between 10,000 the instant apartment house entered or may proceed with the auction procedure. Before the registration of such infringement, the Defendant couple purchased (acquisition) the instant apartment before the registration of such infringement.”

On November 29, 2012, the next day, the Plaintiff confirmed that the Defendant had been delegated with all authority to C, and discussed whether to enter into a sales contract with the Defendant on the instant apartment. However, regarding the instant apartment, the Plaintiff did not reach an agreement with the Defendant on the following grounds: (a) the Defendant was unable to succeed to the secured debt of the right to collateral security established in the future of the National Bank in the context of the National Bank; (b) the 18 million won, registration expenses; (c) acquisition tax, registration tax, etc.; and (d) the

While the Plaintiff, Defendant, E, and F, an employee of a certified judicial scrivener office, had not yet reached a final agreement on the conclusion of a sales contract between the Plaintiff and the Defendant in the presence of the Plaintiff and the Defendant, the Plaintiff had not yet reached a final agreement on the conclusion of a sales contract. However, even if there was an agreement on the conclusion of a sales contract later, in order to promptly proceed with the procedures for the registration of ownership transfer, “the Plaintiff would purchase the apartment of this case to C in the event that the agreement on the conclusion of a sales contract has been reached,” but in lieu of the repayment of the lease deposit of this case with the refund bond of KRW 110 million, the Plaintiff would take over KRW 378,000,000,000,000, which is the balance of the secured debt of the right to collateral security established on the apartment of this case in lieu of the payment of the remainder.”

The defendant will pay interest to the part of December 2012 on the collateral security obligation of the right to collateral security established on the apartment of this case by the defendant couple. While the defendant prepared a letter of promise and sent it to the plaintiff and the employee F of the certified judicial scrivener's office F along with the documents necessary for the registration of ownership transfer concerning the apartment of this case, such as the seller's certificate of personal seal impression, the plaintiff, who had ordered the purchase of the apartment of this case, also explained that "the documents for ownership transfer were set to the employees of the certified judicial scrivener's office, and all of the circumstances faced by the defendant couple."

Ultimately, on the same day, the Plaintiff expressed his/her intent not to purchase the instant apartment to E and the staff F of the Certified Judicial Scriveners Office F, and notified the Defendant’s husband and wife of the same purport on November 30, 2012 following the date.

4) After the voluntary auction on the instant apartment, the Defendant applied for the payment order of this case against the Defendant husband and wife on January 15, 2013, in order to return the lease deposit to the Plaintiff, as the Defendant had no longer any further effect on the instant apartment. Accordingly, the Plaintiff entrusted the Plaintiff with the sales brokerage of the instant apartment to the real estate brokerage office in order to recover the lease deposit of this case. However, the instant apartment was not sold, and on January 15, 2013, in order to recover the lease deposit, the Plaintiff applied for the payment order of this case against the Defendant husband and wife.

However, the voluntary auction procedure based on the right to collateral security was commenced on April 5, 2013 with respect to the apartment of the instant case, and the Plaintiff failed to receive the instant lease deposit from the auction procedure.

[Based on recognition] Gap evidence Nos. 1 through 5, 8, 9, 10 (including serial numbers; hereinafter the same shall apply), Eul evidence Nos. 2, 8 through 16, witness E, G, F, H's testimony, fact-finding on the market in the strike of this court, the result of this court's order to submit financial information data to the Nonghyup Bank Co., Ltd., the purport of the whole pleadings, and the purport of the whole pleadings.

D. Determination

In addition to the fact that there is no evidence to prove that the defendant engaged in real estate brokerage business at the time of the lease of the real estate, but there is no other income in addition to the rent for the lease of the real estate owned by the defendant, and C appears to have taken care of domestic affairs as the main father without a certain occupation around the time of the lease of this case. In addition to the fact that the defendant's husband and wife, due to living expenses, etc., the defendant's act of leasing the apartment of this case to the plaintiff through the defendant in order to raise funds for living expenses, children's education expenses, housing expenses, etc. necessary to lead a marital life with the defendant, while the defendant's husband and wife was responsible for the repayment of the loan in the bank name, including withdrawal and use of the loan limit of 240 million won out of the loan limit of 300 million won in the name of the defendant due to the living expenses, etc., it is reasonable to view that the act of the defendant's husband and wife with the deposit money for lease of the

On the other hand, in light of the above facts, it is insufficient to recognize that the Plaintiff entered into a sales contract to purchase the apartment of this case only with the sales contract of this case with C, and there is no sufficient evidence to acknowledge otherwise, and thus, the Defendant’s assertion on this part is rejected on a different premise.

E. Sub-decision

Pursuant to Article 832 of the Civil Act, the defendant is jointly and severally liable with C to repay the lease deposit amount of KRW 110 million to the plaintiff.

3. Conclusion

The part concerning the defendant in the judgment of the court of first instance concerning the plaintiff is not justified. The plaintiff's appeal is with merit, and the part concerning the defendant in the judgment of the court of first instance concerning the defendant is revoked and it is so decided as per Disposition.

The presiding judge shall create a judge's protocol

Judges Jeong Jae-ok

Judge Cho Jae-soo