Where the duration of chonsegwon on which a mortgage has been established expires, the method for the mortgagee to claim the payment of the deposit money / Whether the settlor of chonsegwon may oppose the mortgagee with the opposite claim against the mortgagee (affirmative with qualification) if the mortgagee exercises the subrogation right on the deposit money (affirmative)

Where a mortgage has been established for the purpose of lease on a deposit basis, the mortgage cannot be executed for the right to lease on a deposit basis because the utility of the right to lease on a deposit basis becomes extinct if the duration of the right to lease on a deposit basis expires, and the mortgagee shall seek the payment of the lease on a deposit basis by exercising the subrogation right in the procedure of compulsory execution against the claim to return the lease on a deposit basis, which may be deemed to exist in lieu of the right to lease on a deposit basis.

Where a mortgagee of chonsegwon exercises the right of subrogation for the claim for the return of lease on a deposit basis as above, the effect of the previous mortgage continues to exist in the claim for the return of lease on a deposit basis, which is the object of subrogation, and the mortgagee is entitled to obtain preferential reimbursement from other general creditors than other general creditors. Thus, even if the mortgagee has the opposing claim against the mortgagee when the claim for the return of lease on a deposit basis was seized, and even if the opposing claim and the claim for the return of lease on a deposit are in offset, the settlor of chonsegwon cannot oppose

However, the claim for the return of lease on a deposit basis can be deemed to have already been scheduled to have already occurred from the time when the right to lease on a deposit basis was established. Thus, if the settlor of chonsegwon has already opposed to the person having chonsegwon at the time when the right to lease on a deposit basis was established and the repayment period for the opposite claim is at the same time as the repayment period for the claim for the return of lease on a deposit basis that will occur in the future or earlier, barring any special circumstance, the settlor of chonsegwon may set off the opposite claim against

Articles 342, 370, and 498 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Korea Stock Savings Bank, Inc.

Defendant (Attorney Lee Young-young, Counsel for defendant-appellant)

Daegu District Court Decision 2013Na353 decided October 31, 2013

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Where a mortgage has been established as the object of chonsegwon, the mortgage cannot be executed as to the right to lease on a deposit basis because the right to use the right to lease on a deposit basis becomes extinct if the duration of chonsegwon expires, and the mortgagee shall seek the payment of the deposit money by exercising the subrogation right by means of seizure, collection order or assignment order as to the claim for lease on a deposit basis which may be deemed to exist in lieu of the right to lease on a deposit basis which is the object of the mortgage, or distribution by a third party in compulsory execution procedure against the claim for lease on a deposit basis (see Supreme Court Decision 98Da31301 delivered on September 17, 199, etc.).

In a case where a mortgagee of chonsegwon exercises the right of subrogation for the claim for the return of lease on a deposit basis as above, the effect of the previous mortgage continues to exist in the claim for the return of lease on a deposit basis which is the object of subrogation and the mortgagee is entitled to obtain preferential reimbursement from other general creditors than other general creditors. Thus, even if the mortgagee has the opposing claim against the mortgagee when the claim for the return of lease on a deposit basis was seized, and even if the opposing claim and the claim for the return of lease on a deposit are in offset, the settlor of chonsegwon cannot set-off against

However, the right to claim the return of lease on a deposit basis can be deemed to have already been scheduled to have been created from the time when the right to lease on a deposit basis was established. Thus, in cases where the settlor of chonsegwon already has a opposing claim against the person having chonsegwon at the time when the right to lease on a deposit basis was established and the repayment period for the opposite claim is at the same time as the repayment period for the right to claim the return of lease on a deposit basis that will occur in the future or is earlier than that, barring special circumstances, the settlor of chonsegwon may set off

2. According to the reasoning of the lower judgment and the record, (1) on May 25, 2005, the Nonparty, while leasing the instant building from the Defendant, filed a claim for the return of deposit money, and (2) on April 30, 200 to April 29, 200; (3) on September 13, 2010 after the renewal of the lease agreement, the Nonparty’s claim for the return of deposit money was automatically transferred to the Nonparty KRW 150 million on September 14, 201; and (4) on September 14, 2010 to April 29, 2017, the Plaintiff filed a claim for the return of deposit money against the Nonparty KRW 10,000,000 on September 14, 2010 to KRW 10,000,000,000 for the first time, and the Nonparty’s claim for the return of deposit money was automatically transferred to the Defendant on September 20, 2010.

Based on the above factual basis, the lower court determined that the instant chonsegwon was established to secure the claim for the return of the lease deposit under the lease agreement, and that the lease deposit is naturally secured only by the lessor’s claim arising from the lease agreement, and thus, the Defendant, the settlor of chonsegwon, cannot set off against the Plaintiff, who exercised the subrogation right against the claim for the return of the lease deposit against the Nonparty, the lessee.

3. However, we cannot accept the above judgment of the court below as it is.

In light of the above facts in light of the legal principles as seen earlier, in a case where there exists a loan claim against the non-party at the time when the mortgage on the right to lease on a deposit basis was established, and the repayment period of the loan becomes at the same time as or earlier than that of the claim for the return of lease on a deposit basis that will occur in the future, the defendant, barring special circumstances, may set off the above loan claim against the plaintiff

Therefore, even though the court below should have deliberated on the existence of a loan claim asserted by the defendant and the prior relation between the repayment period of the loan claim and the deposit money return claim, the court below rejected the defendant's counterclaim for offset only for the reasons stated in its reasoning. In so doing, the court below erred by misapprehending the legal principles on offsetting with subrogation and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

Supreme Court Decision 2006Da29372, 29389 Decided March 13, 2008, which held by the court below, held that in the case where the mortgagee was unaware of the fact that the right to lease on a deposit basis was established for the purpose of securing the security for the right to lease deposit, the claim for overdue rent, management fee, damages, etc. arising under the lease agreement cannot be offset against the right to lease on a deposit basis by the automatic claim, and it is inappropriate to invoke the case differently from the case in question.

4. Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)