Plaintiff

Seogang-il Co., Ltd. (Law Firm Dongin, Attorneys Kim Jong-tae, Counsel for the plaintiff-appellant)

April 11, 2018

1. The Defendant (Counterclaim Plaintiff) paid KRW 70,000,000 to the Plaintiff (Counterclaim Defendant) simultaneously with the delivery of real estate listed in the separate sheet from the Plaintiff (Counterclaim Defendant).

2. The Plaintiff (Counterclaim Defendant) received KRW 70,000,000 from the Defendant (Counterclaim Plaintiff) and at the same time deliver the real estate indicated in the separate sheet to the Defendant (Counterclaim Plaintiff).

3. The remaining claims of the Plaintiff (Counterclaim Defendant) and the remaining claims of the Defendant (Counterclaim Plaintiff) are dismissed, respectively.

4. The costs of the lawsuit shall be borne by the plaintiff and the defendant, respectively, in combination with the principal lawsuit and the counterclaim.

5. Paragraphs 1 and 2 of this Article may be provisionally executed.

The principal lawsuit: The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) pays to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) 70 million won with interest calculated at the rate of 15% per annum from the delivery date of real estate indicated in the attached Form to the date of complete payment.

Counterclaim: The plaintiff shall deliver to the defendant the real estate stated in the attached list.

1. Basic facts

A. On January 27, 2014, the Plaintiff entered into a lease agreement (hereinafter “instant lease agreement”) with the Korea Transportation Industry Development Co., Ltd. (hereinafter “Korea Transportation Industry Development”) by setting the lease deposit amount of KRW 70 million and the lease deposit amount of KRW 70 million from January 27, 2014 to January 27, 2016. At that time, the Plaintiff paid the lease deposit amount of KRW 70 million to the Korea Transportation Industry Development.

B. On January 27, 2014, the Plaintiff completed a move-in report after receiving the instant real estate (the date when the move-in report was finalized was received on April 29, 2015) and possessed the instant real estate until now.

C. On the other hand, on December 24, 2013, the Korea Railroad Real Estate Trust Co., Ltd. (hereinafter “KF Real Estate Trust”) entered into a trust agreement on the instant real estate with a truster development for the instant real estate, a trustee’s trust for real estate trust, a beneficiary’s port credit cooperative (hereinafter “SP”) and a real estate security trust agreement (hereinafter “instant trust agreement”). The KF real estate trust completed the registration of ownership transfer based on the said trust on the same day.

D. On April 8, 2014, the Korea Development Bank completed the registration of ownership transfer on the ground of reversion of trust property on the same day. The Korea Development Bank completed the registration of ownership transfer on the same day with respect to the instant real estate at issue as the maximum debt amount of KRW 57,850,000.

E. Since then, a voluntary auction procedure was commenced regarding the instant real estate, and the Defendant completed the registration of ownership transfer on February 20, 2017 on the instant real estate for reasons of sale due to voluntary auction on February 17, 2017.

【Unsatisfyal grounds for recognition】 unsatisfy, Gap evidence 1 through 4, Eul evidence 1 through 4 (including provisional number), the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiff

As the Plaintiff acquired opposing power by delivering the instant real estate and completing the resident registration, the Plaintiff also has an opposing power to the Defendant. Therefore, as the instant lease contract has expired due to the expiration of the validity, the Plaintiff sought a return of KRW 70 million as the principal lawsuit against the Defendant.

B. Defendant

In addition, the instant lease agreement is concluded between the truster who is not authorized to enter into the lease agreement as a truster, and the effective date of the opposing power of the instant lease agreement is the next day after the registration of ownership transfer is completed again due to the effect of the public announcement of the trust. Therefore, the instant lease agreement, which is subordinate to the registration of ownership transfer prior to the registration of establishment of mortgage prior to the establishment of mortgage prior to the establishment of mortgage prior to the coastwise Port Newcom, should be terminated. Therefore, the Plaintiff cannot exercise opposing power pursuant to the instant lease agreement against the Defendant, and thus, the Plaintiff seeks the transfer of the instant real estate as a counter-

3. Determination

A. Relevant legal principles

A lease is established when one of the parties agrees to allow the other party to use or make profit from an object, and the other party agrees to pay rent for it (see Article 618 of the Civil Act). Even if a lessor has no ownership or right to lease the object, a lease agreement is effective (see, e.g., Supreme Court Decision 2008Da38325, Sept. 24, 2009): Provided, That the lease to which the Housing Lease Protection Act applies is not limited to cases where a lease agreement is concluded between a lessee and a lessor who is the owner of the house, but at least the lessor who has the right to lawfully conclude the lease agreement is required to enter into the lease agreement (see, e.g., Supreme Court Decision 2012Da93794, Feb. 27, 2014).

On the other hand, Article 3(1) of the Housing Lease Protection Act provides for the requirements for opposing power along with the delivery of a house, as a means of public announcement that enables a third party to clearly recognize the existence of a right of lease for the safety of transaction. Whether the validity of a public announcement of a lease is determined based on which the third party can recognize the existence of a right of lease as a resident registration. Thus, it is insufficient to say that a method of public announcement that can satisfy the requirements for opposing power of resident registration is simply a formal resident registration for the purpose of a public announcement that can satisfy the requirements for opposing power of resident registration. The extent that the third party can recognize that the possession relationship indicated on the basis of resident registration is the possession mediating the right of lease (see, e.g., Supreme Court Decision 200Da58026, 58033, Jan. 30, 201).

B. Determination of the instant case

In light of the above evidence, the truster is obliged to enter into a lease agreement on the real estate of this case with the consent of the truster pursuant to Article 10 of the trust agreement of this case. However, the truster, when entering into the lease agreement of this case, pursuant to the development agreement of this case, the truster did not obtain the consent of the K non-real estate trust, and each registration of trust, including the indication of the trust ledger, was made on the real estate of this case according to the trust agreement of this case. Accordingly, it is difficult to view that the truster had a legitimate right to lease on the real estate of this case at the time of entering into the lease agreement of this case.

However, even if there is no legitimate right to lease on the instant real estate in accordance with the aforementioned legal principles, it shall be deemed that the instant lease agreement is valid, and since it shall be deemed that the instant lease agreement is subject to the Housing Lease Protection Act from that time, since it is reasonable to view that the instant lease agreement is subject to the Housing Lease Protection Act, since it is reasonable to deem that it would be subject to the said agreement, by completing the registration of ownership transfer on the instant real estate, which is a trust property

Furthermore, as to the time of acquisition of the opposing power of the instant lease agreement, the Plaintiff: (a) had been fully aware that the instant real estate was transferred to the third party from before it was restored the ownership of the instant real estate under the instant lease agreement; (b) as long as the instant lease agreement is effective, it is reasonable to deem that the Plaintiff has a sufficient effect to publicly notify the third party of the Plaintiff’s resident registration as to the instant real estate; (c) there is no ground to deem that the said circumstance alone does not have the effect of public announcement of lease based on the Plaintiff’s resident registration; (d) the Defendant, if he recognizes the opposing power of the instant lease agreement, may inflict damages on the third party, such as the establishment of a right to collateral security, and the Plaintiff had sufficiently expressed that the ownership of the instant real estate was occupied by the possession of the instant real estate and the lease industry, not the ownership of the instant real estate before it was established, and thus, it is reasonable to deem that the Defendant had been aware that the instant lease agreement had been occupied by the lessee or the owner of the instant real estate, and that it should have continued to develop the leased housing immediately.

Therefore, the defendant is obligated to return the lease deposit amount of KRW 70 million to the plaintiff with the expiration of the lease contract of this case. The plaintiff is obligated to deliver the real estate of this case to the defendant as the restoration, and each of the above obligations is simultaneously performed.

4. Conclusion

If so, the plaintiff's main claim and the defendant's counterclaim are accepted within the scope of each above recognition, and each remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Lee Jae-ho