Plaintiff 1 and two others (Law Firm Jeong, Attorneys Go Jae-hwan et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Korea, Attorneys Kim Jong-chul et al., Counsel for the defendant-appellant)

Seoul Southern District Court Decision 2010Gahap27077 Decided September 22, 2011

April 13, 2012

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

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

The purport of the claim: The defendant shall pay to the plaintiff 1 257,142,857 won, and to the plaintiff 2 and 3 171,428,571 won, and each of the above amounts, 20% per annum from January 12, 2011 to the day of complete payment.

The purport of appeal is as set forth in the Disposition.

1. Basic facts

A. Acquisition of the right to collateral security by Nonparty 2

1) Nonparty 3 and Nonparty 4, who were the owner of the building on the land outside Gwanak-gu in Seoul Special Metropolitan City (hereinafter omitted), entered into a lease contract on deposit basis (hereinafter “instant lease contract”) with respect to the entire underground area of the above building on August 12, 2004, 63.48 square meters on the same side among the first floor, 2 through 5 square meters on the same floor (hereinafter “the building in this case”). Nonparty 4 obtained the lease on deposit basis from August 12, 2004 to August 31, 2008 (hereinafter “the lease contract in this case”). Accordingly, the right to claim the lease on deposit basis (hereinafter “the lease in this case”) and the right to claim the return of the lease on deposit basis secured by the lease in this case from Nonparty 3 and received the registration of the lease on deposit basis by Nonparty 3’s receipt on August 17, 2004.

2) On August 17, 2004, in order to secure the claim against Nonparty 4, Nonparty 2 entered into a mortgage agreement stipulating a maximum debt amount of KRW 600,00,000 with respect to the instant chonsegwon (hereinafter “mortgage agreement”). Accordingly, Nonparty 2 entered into the mortgage agreement with respect to the instant chonsegwon, which was acquired as a result, as “mortgage” and “mortgage secured by the instant mortgage” and “mortgage secured by the instant mortgage,” and Nonparty 4 entered into a mortgage agreement with Nonparty 4 on the ground of the said contract, with the same registry office No. 38531, Aug. 17, 2004.

(b) Transfer of ownership of chonsegwon and the building in this case;

1) On January 10, 2007, the Educational Land Co., Ltd. (hereinafter “Educational Land Respect”) transferred the right to lease on a deposit basis from Nonparty 4, and on the ground thereof, registered the right to lease on a deposit basis (hereinafter “transfer of lease on a deposit basis”) with the same registry office No. 1749 on January 10, 207 (hereinafter “transfer of lease on a deposit basis”).

2) On July 3, 2007, the instant building was transferred to Nonparty 5. The Defendant purchased the instant building from Nonparty 5 and completed the registration of ownership transfer on June 3, 2010.

C. Seizure and collection by Nonparty 1

1) Nonparty 1 filed a lawsuit against Nonparty 2 on the loan claim as Seoul Central District Court 2008Gahap97251, and the Seoul Central District Court rendered a favorable judgment that “the Defendant ( Nonparty 2) (hereinafter “the final judgment of this case”) shall pay to the Plaintiff ( Nonparty 1) the amount of KRW 770,000,000 and the amount of KRW 14.4% per annum from June 1, 2008 to October 17, 2008, and the amount of KRW 20% per annum from the next day to the date of full payment.” The above judgment was finalized on June 23, 2009 (hereinafter “the final judgment of this case”).

2) Nonparty 1 applied for a seizure and collection order of the right to lease on a deposit basis and the right to collateral security (hereinafter “the first collection order”) on August 24, 2009, which transferred the instant final judgment to a provisional attachment to Seoul Central District Court 2009TTTTT 24577. Nonparty 1 received a decision to accept it (the creditor, the debtor, the garnishee 2, the garnishee 4, and the first collection order) on August 24, 2009, and the above decision was served to Nonparty 4 around that time. Thereafter, Nonparty 1 again applied for a seizure and collection order of the right to collateral security (the creditor, the debtor, the garnishee, the defendant, and the second collection order) on October 18, 2010. The above decision was served to the Defendant on October 13, 209, respectively.

(d) A lease contract for the existence of an educational area and a rent;

(1) At the time of October 9, 2008, the education area existed between Nonparty 5 who was the owner of the instant building as of September 9, 2008 and September 8, 2012, the lease term of the instant building was from September 9, 2008 to September 8, 2012, the lease deposit was 650,000,000 won (whichever is 60,000,000 won is the right of lease on a deposit basis of this case as the right of lease on a deposit basis) and the rent was 40,87,000 won per month from September 9, 2008 to September 8, 2012, and the rent was 42,931,000 won per month from September 9, 2009 to September 8, 2012 (hereinafter “the lease contract”).

(2) After acquiring the ownership of the instant building, the Defendant succeeded to the lessor’s status of the instant lease agreement from Nonparty 5.

(3) The existence of the place of education did not pay the rent of KRW 20,887,00 in total in 200 in 209. From March 9, 2010 to May 12, 201, the total amount of rent of KRW 42,931,00 in arrears is KRW 669,145,100 (=20,87,000 + KRW 42,931,000 + (15 + 3/30).

E. The plaintiffs' lawsuit acceptance system

On May 16, 201, after the filing of the instant lawsuit, Nonparty 1 died after Nonparty 1 left Plaintiff 1 and his/her children as his/her heir, and died, Nonparty 1 taken over the instant litigation procedure.

【In the absence of dispute, Gap evidence 1, Gap evidence 2-1, Gap evidence 2-2, Gap evidence 3, 4, Eul evidence 1 and 3, the purport of the whole pleadings and arguments

2. Determination as to the cause of action

(a) Occurrence of obligation to pay collected money;

If the duration of chonsegwon expires, the mortgage on the right to use the right to lease on a deposit basis is no longer possible because the right to use the right to lease on a deposit basis is extinguished, and in such a case, the mortgage on the right to lease on a deposit basis may not be executed, and the right may be exercised by either receiving a collection order or an order in whole with respect to the claim for the return of lease on a deposit basis which may be deemed existing in lieu of the object of the mortgage under Articles 370 and 342 of the Civil Act, and Article 273 of the Civil Execution Act, or demanding a distribution in the compulsory execution procedure conducted by a third party against the claim for the return of lease on a deposit basis (see Supreme Court Order 95Ma684 delivered on September 18, 195, Supreme Court Order 98Da31301 delivered on September

The non-party 1 received the first collection order against the non-party 2's claim for the right to lease on a deposit basis, and thus the term of the right to lease on a deposit basis of the right to lease on a deposit basis of the expiration of the term of the right to lease on a deposit basis of the right to lease on a deposit basis of the right to lease on a deposit basis was unable to execute the mortgage on the right to lease on the deposit basis of the right to lease on a deposit basis of the right to lease on a deposit basis of the right to lease on a deposit basis. The plaintiffs took over the lawsuit of this case as the non-party 1's co-inheritors, barring any special circumstance, the defendant is obligated to pay to the plaintiff 1 the amount of money collected to the plaintiff 1 2, and the plaintiff 2, and the non-party 3 each 171,428,571 won (=600,000,000 x 2/7) and delay damages.

3. Judgment on the defendant's assertion

(a) Claims on the amount of money collected;

The defendant asserts to the purport that the plaintiffs can exercise their right to collect only within the scope of KRW 150,000,000,000, because the claims held by the non-party 2 against the non-party 4 are merely KRW 150,000.

In full view of the following facts: (a) No. 5 and No. 4; and (b) Nonparty 2’s testimony and pleading of the first instance court witness: (c) on June 16, 2003, Nonparty 2 and Nonparty 7’s wife Nonparty 6, and Nonparty 7 leased KRW 600,000 to Nonparty 4 as the lease deposit for the instant building (hereinafter “Loan for Consumption”); (d) Nonparty 2, Nonparty 6, Nonparty 7, and Nonparty 8, respectively, agreed to lend KRW 150,000 to Nonparty 6, respectively, for the purpose of exercising the right to lease on a deposit basis; and (e) Nonparty 6, to Nonparty 7 and Nonparty 2’s right to lease on a deposit basis; and (e) Nonparty 6, on the ground that Nonparty 8 and Nonparty 2 did not provide Nonparty 2 with the right to lease on a deposit basis; and (e) Nonparty 6, 400,000 won to Nonparty 6.

(b) Defenses of performance;

The defendant asserts that KRW 15,00,000 out of the collection amount of this case had ceased to exist on February 5, 2009. However, considering the contents stated in the evidence Nos. 5, 6, which the defendant submitted as the ground for the above claim for repayment, this only supports the fact that the Fururnet Co., Ltd., the parent company of educational land, paid KRW 15,00,000 to Nonparty 2 for a short-term loan, which is the parent company of educational land, and therefore, it is not clear that the above evidence Nos. 5, 6 and Fururnet Co., Ltd., the above fact that the defendant received money more accurately from the above defendant, but it is not sufficient to acknowledge the above assertion for payment only by the testimony of Nonparty 2 of the first instance trial witness of the purport that he received money more than several times

(c) Mutual aid defense;

The defendant asserts that the existence of the place of education is a monthly rent as stipulated in the instant lease agreement, and that the total amount was 669,145,100 won as seen above, and that it should be deducted from the key money for lease on a deposit basis of this case, so it is impossible to comply with the plaintiff's request.

However, in light of the nature of the contract to establish a right to lease on a deposit basis, the right to claim the return of the lease on a deposit basis when the period of the right to lease on a deposit basis expires pursuant to the contract to establish a right to lease on a deposit basis, the aforementioned right to lease on a deposit basis cannot be established by itself. However, in cases where the right to lease on a deposit basis has been registered in the name of a lessee and the right to lease on a deposit basis pursuant to the agreement between the lessee and the lessor for the purpose of securing the right to lease on a deposit basis even though there is no contract to establish a right to lease on a deposit basis, the right to lease on a deposit is deemed null and void as the contract to establish a right to lease on a deposit. In cases where the right to lease on a deposit has a new legal interest due to a separate legal cause based on the legal relationship formed by the contract to establish a right to lease on a deposit on a deposit basis, the right to lease on a deposit can be asserted as null and void (see Supreme Court Decisions 98Da20981, Feb. 9, 2006).

In full view of the statements in Eul evidence Nos. 4 and Eul evidence Nos. 7 through 12 (including paper numbers) and the testimony of non-party Nos. 2 of the first instance trial, the non-party No. 4 determined on August 12, 2004 the term of 6.5 million won and the term of 6.5 million won to lease the building of this case from non-party No. 3 for the term of August 30, 2008. The non-party No. 4 decided to have the right to lease from non-party No. 3 for the term of 600 million won out of the security deposit. The non-party No. 4 provided the right to lease of this case as security to non-party No. 2, etc. on the same day, and the non-party No. 2 acquired the right to lease of this case as security deposit. The non-party No. 2 knew that the right to lease of this case was established for the purpose of return of the right to lease of this case.

In full view of these circumstances, the Defendant’s collection of the instant right to lease on a deposit basis with the execution of the instant right to collateral security, and the fact was established to secure the right to lease on a deposit basis for the instant right to lease on a deposit basis, and Nonparty 2, the mortgagee of the instant right to collateral security, was well aware of such circumstances, may assert to deduct the amount equivalent to the overdue rent of the place of education from the instant right to lease on a deposit basis. However, as seen above, even if the overdue rent of the place of education was based on May 12, 201, even as of May 12, 2011, it is apparent that the instant right to lease on a deposit basis is entirely extinguished if it deducted the overdue rent of KRW 669,145,00 from the instant right to collateral security, and thus, the Defendant’

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair, and it is revoked, and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges Kang Jong-ju (Presiding Judge) Kim Jong-ho

1) Meanwhile, even though the first collection order was determined after the right to lease on a deposit basis of this case had already been transferred to the educational place, it appears that it was not served on the existence of the educational place, which is the owner (in the case of this case, the person having the right to lease on a deposit basis) under Article 228(2) of the Civil Execution Act. However, the second collection order was served on the educational place. However, the second collection order was served on the educational place, and the educational place was sufficiently known that the instant collateral security and the instant right to lease on a deposit basis were being executed through the seizure of the claim and the collection order. Therefore, the defect in the execution procedure as above does not affect