[1] Whether a person who acquired the ownership of a leased building by inheritance constitutes “the assignee of a leased building” under Article 3(2) of the Commercial Building Lease Protection Act (affirmative), and whether a joint lessor who jointly succeeded to the status of a lessor is an indivisible obligation (affirmative)

[2] The meaning of “where a person does not know of the fact that the inherited obligation exceeds the inherited property by gross negligence” under Article 1019(3) of the Civil Act, and the burden of proof as to such meaning (=he inheritor)

[3] The meaning of "when an entry is not entered in a property list by intention" under Article 1026 subparagraph 3 of the Civil Code

[1] Article 3 of the Commercial Building Lease Protection Act provides for the requirements for opposing power under paragraph (1) as the title "abstinence, etc.", and Article 3 (2) provides that "the transferee of a leased building (including any other person who succeeds to the right to lease) shall be deemed to succeed to the status of a lessor." This provision provides for the contents of opposing power acquired by a lessee. In cases where the lessee of a commercial building acquires the opposing power against a third party and the owner of a leased building changes due to the transfer of a leased building, etc., the transferee, etc. (hereinafter "transferee") succeeds to the status of a lessor as a matter of course. This provision applies to a person who acquires the ownership of a leased building by inheritance regardless of legal acts, such as sale and purchase of the leased building, etc., regardless of statutory provisions such as inheritance and auction, etc., such person constitutes the transferee of a leased building as provided in the above provision. The obligation to return

[2] Article 1019(3) of the Civil Act provides, “A heir shall not know by gross negligence the fact that his/her inherited obligation exceeds his/her inherited property” means a failure to know such fact by neglecting his/her inheritance obligation if he/she had paid little attention to the fact that his/her inherited obligation exceeds his/her inherited property. The heir bears the burden of proving that the heir was unaware of the fact that his/her inherited obligation exceeds his/her inherited property without gross negligence within the period under Article 1019(1) of the

[3] Article 1026 subparag. 3 of the Civil Act provides that where an inheritor conceals, wrongfully consumes, or intentionally fails to enter in the inventory after having made a qualified acceptance or a renunciation, an inheritor shall be deemed to have made a simple approval. Here, “when failing to enter in the inventory of property in a false manner” means that, when a qualified acceptance is made, an inheritor does not enter the inherited property in the inventory with the intent to conceal the inherited property and to prejudice inheritance creditors by means of under

[1] Article 3(2) of the Commercial Building Lease Protection Act, Article 411 of the Civil Act / [2] Article 1019(3) of the Civil Act, Article 288 of the Civil Procedure Act / [3] Article 1026 subparag. 3 of the Civil Act

[1] Supreme Court Decision 67Da328 Decided April 25, 1967, Supreme Court Decision 93Da4083 Decided November 23, 1993 (Gong194Sang, 168) Supreme Court Decision 2016Da218874 Decided March 22, 2017 (Gong2017Sang, 841), Supreme Court Decision 2017Da205073 Decided May 30, 2017 (Gong2017Ha, 1369) / [2] Supreme Court Decision 2010Da7904 Decided June 10, 201 (Gong2010Ha, 1360) / [3] Supreme Court Decision 2009Da839790 Decided April 29, 2010 (Gong2010Ha, 1360)

Plaintiff

Defendant 1

Defendant 2

Jeonju District Court Decision 2014Na6537 decided September 3, 2015

The part of the lower judgment against Defendant 2 is reversed, and that part of the case is remanded to the Jeonju District Court. The Plaintiff’s appeal against Defendant 1 and Defendant 2’s appeal are all dismissed. The costs of appeal against Defendant 1 are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Judgment on the Plaintiff’s grounds of appeal

A. As to the assertion regarding the obligation to return the lease deposit against Defendant 2

1) Article 3 of the Commercial Building Lease Protection Act (hereinafter “The Commercial Building Lease Protection Act”) provides for the requirements for opposing power under paragraph (1) with the title “an opposing power, etc.” and Paragraph (2) provides that “the transferee of a leased building (including any other person who succeeds to the right to lease) shall be deemed to succeed to the status of the lessor.” This provision provides for the opposing power acquired by the lessee. In cases where the lessee of a commercial building acquires the opposing power against a third party and the lessee changes due to the transfer of a leased building, etc., it means that the new owner, such as the transferee, etc. (hereinafter “transferee”) succeeds to the status of the lessor as a matter of course. This provision is applicable to a person who acquires the ownership of the leased building by inheritance regardless of legal acts such as inheritance and auction, etc., regardless of whether there are statutory provisions such as sale and purchase of the leased building, and thus, constitutes the transferee of the leased building as referred to in the above paragraph (2) (see Supreme Court Decisions 93Da4083, Nov. 23, 1993; 206Da27287, Mar. 27, 2017.

2) According to the reasoning of the lower judgment and the evidence duly admitted, the following facts are recognized.

A) On August 9, 199, the Plaintiff entered into a lease contract with 121.97 square meters (hereinafter “instant leased building”) among the buildings listed in the attached list of the lower judgment (hereinafter “instant building”) owned by ○○○○○○○○ Company (hereinafter “○○○○ Company”) as a deposit deposit of 50,000,000 square meters (not monthly rent) and 24 months (Provided, That it was decided to extend automatically upon the expiration of the contract period, on August 15, 1999). The Plaintiff was running retail business from around August 15, 199 to “○○○○○○○” as the trade name in the instant leased building. A business registration was completed around that time.

B) On November 21, 1997, Nonparty 1, the representative director of ○○○○○ Company, completed the registration of the right to claim the transfer of ownership on the ground of the pre-sale agreement as of November 17, 1997, and died on October 23, 200, and Nonparty 2, the wife of Nonparty 1, completed the registration of transfer of ownership as the principal registration on the instant building on February 10, 2006.

C) On December 10, 2006, the Plaintiff concluded a lease agreement on the instant leased building with Nonparty 2 (hereinafter “instant lease agreement”). The content is the same as that of the lease agreement dated August 9, 199.

D) On December 15, 2008, the Plaintiff completed the lease registration on December 17, 2008 on the instant leased building subject to the order of lease registration.

E) On February 14, 2009, Nonparty 2 died, and on March 31, 2010 after Nonparty 2’s death, the registration of ownership transfer was completed for each of the instant building on March 31, 2010, on which the Defendants and the co-defendant 3 of the first instance trial and Nonparty 4 were inherited in the future.

F) Voluntary auction procedure was initiated through the enforcement of the first-class mortgage on the instant building. On January 13, 2011, a limited liability company acquired the instant building.

3) We examine the aforementioned facts in light of the relevant legal principles.

The lease deposit stipulated in the instant lease agreement does not exceed the standard lease deposit pursuant to Article 2(1)4 of the former Enforcement Decree of the Commercial Building Lease Protection Act (amended by Presidential Decree No. 17757, Oct. 14, 2002; enacted on Nov. 1, 2002); therefore, the Plaintiff acquired opposing power from the date following the date of application for business registration pursuant to Article 3(1) of the former Commercial Building Lease Protection Act (amended by Act No. 6542, Dec. 29, 2001; hereinafter “former Commercial Lease Protection Act”) and the proviso to Article 3(2) of the Addenda.

The Defendants jointly succeed to the status of the lessor under the instant lease agreement as a person who acquired the ownership of the instant building by inheritance with Nonparty 3 and Nonparty 4 on February 14, 2009. The Plaintiff, on December 15, 2008, received the lease registration order and completed the lease registration on December 17, 2008 without receiving the lease deposit. Even when the lease is terminated, the lease relationship remains (Article 9(2) of the former Commercial Building Lease Act) until the lessee is returned the deposit (Article 9(2) of the former Commercial Lease Act). Thus, the determination of the termination of the instant lease agreement does not affect the status of the Defendants and Nonparty 3 and Nonparty 4’s joint lease. Therefore, the Defendants, a joint lessee of the instant building, jointly with Nonparty 3 and Nonparty 4, are liable to pay the Plaintiff the lease deposit amount of KRW 50,000,000 and delay damages, barring any special circumstance.

4) Nevertheless, the lower court determined that the Defendants, the inheritors of Nonparty 2, and Nonparty 3 and Nonparty 4, who jointly succeeded to the status of the lessor under the Commercial Building Lease Act, share in their respective inheritances, on the ground that the Plaintiff’s lease rights to the leased building of this case were extinguished due to the sale by auction conducted upon the application of the senior mortgagee. In so doing, the lower court erred by misapprehending the legal doctrine on the obligation to return the lease deposit by the inheritors who jointly succeeded to the status of the lessor under the Commercial Building Lease Act, thereby adversely affecting the conclusion of the judgment. The Plaintiff’s ground of appeal pointing this out

B. As to the assertion regarding the qualified acceptance against Defendant 1

1) The first sentence of Article 1019(1) of the Civil Act provides, “An inheritor may grant absolute acceptance, qualified acceptance or renunciation within three months from the date on which he/she becomes aware of the commencement of inheritance.” Article 1019(3) of the Civil Act provides, “Where an inheritor, notwithstanding the provisions of paragraph (1), without knowing the fact that his/her inherited obligation exceeds his/her inherited property, he/she did not know of the fact that it exceeds his/her inherited property within the period prescribed in paragraph (1) without gross negligence, a qualified acceptance may be made within three months from the date on which he/she becomes aware of such fact.” Article 1026 subparag. 2 of the Civil Act provides, “If an inheritor fails to give a qualified acceptance or renunciation within the period prescribed in Article 1019(1) of the Civil Act, he/she shall be deemed to have given a simple approval.” Article 1019(3) of the Civil Act provides, “Where an inheritor fails to know the fact that his/her inherited property exceeds his/her inherited property, he/she did not know the fact that it exceeds his/her inherited property.”

Meanwhile, Article 1026 Subparag. 3 of the Civil Act provides that, after a qualified acceptance is made or a renunciation is made, an inheritor shall be deemed to have granted simple approval when an inheritor conceals, wrongfully consumes, or intentionally fails to enter in the inventory. Here, “when an inheritance is not entered in the inventory” means that, when a qualified acceptance is made, an inheritor does not enter the inherited property in the inventory with the intent to conceal inherited property and thereby prejudice inheritance creditors (see, e.g., Supreme Court Decision 2009Da84936, Apr. 29, 2010).

2) For the following reasons, the lower court determined to the effect that Defendant 1 bears the liability within the scope of the inherited property from Nonparty 2.

A) Defendant 1 was unaware of the fact that the inheritance obligation exceeds the inherited property within three months from the time when he became aware of the commencement of inheritance, and there was no gross negligence on the part of Defendant 1, who was unaware of the fact that the inheritance obligation exceeds the inherited property, and Defendant 1’s report on the inheritance limited acceptance on September 5, 201, which was within three months from the time when he became aware of the fact that the inheritance obligation exceeds the inherited property (hereinafter “report on the qualified acceptance

B) At the time of reporting the qualified acceptance, Defendant 1 did not appear to have had an intention to harm the Plaintiff, as it did not enter the obligation and obligation of the instant building in the property list, and there is no evidence to acknowledge Defendant 1’s intention.

3) Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding qualified acceptance and statutory simple approval, or by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the

2. Determination on Defendant 2’s grounds of appeal

Even if the Plaintiff paid the lease deposit to Nonparty 1, the lower court determined that: (a) the ○○○ Company assumed the obligation to return the lease deposit as a party to the lease agreement; (b) Nonparty 2 succeeded to the ownership of the instant building from the ○○ Company and subsequently concluded the instant lease agreement with the Plaintiff; (c) the obligation to return the lease deposit was succeeded to Nonparty 2; and (d) Defendant 2 did not waive the inheritance against Nonparty 2; and thus, (c) succeeded to the obligation to return the lease deposit from Nonparty 2.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the renunciation of inheritance, or by erroneously recognizing facts beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules, etc.

3. Conclusion

Therefore, the part of the lower judgment against the Plaintiff against Defendant 2 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal against Defendant 1 and the appeal by Defendant 2 are all dismissed. The costs of appeal against Defendant 1 are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee (Presiding Justice)