(영문) 대법원 2021.1.28.선고 2015다59801 판결

The part of the judgment below against the plaintiff against the defendant 2 shall be reversed, and that part of the case shall be remanded to the Jeonju District Court.

All of the Plaintiff’s appeals against Defendant 1 and Defendant 2’s appeals are dismissed.

The costs of appeal against Defendant 1 are assessed against the Plaintiff.

Reasons

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 provides for the requirements for opposing power under paragraph (1) with the title of "abstinence, 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 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 building changes due to transfer of a leased building, etc., it means that a new owner, such as a transferee, etc. (hereinafter referred to as "transferee"), naturally succeeds to the status of a lessor. This provision is applicable regardless of legal acts such as sale and purchase of ownership, etc., regardless of statutory provisions such as inheritance and auction, etc., so a person who acquires the ownership of a leased building by inheritance constitutes the transferee of a leased building as referred to in the above provision (see, e.g., Supreme Court Decisions 93Da4083, Mar. 22, 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 concluded a lease contract with a deposit deposit of KRW 50,00,00 (no monthly rent) and 24 months (Provided, That from August 15, 1999, the Plaintiff was running a retail business with a trade name, “(trade name omitted)” on the leased building from around 15, 1999 to the building listed in the attached list of the lower judgment (hereinafter “instant building”) owned by Hyundai Development Co., Ltd. and the building owned by Hyundai Development (hereinafter “instant building”). A business registration is completed around that time.

B) On November 21, 1997, Nonparty 1, a representative director of modern development, completed the registration of ownership transfer based on the provisional registration as to the instant building on November 17, 1997, where Nonparty 1’s wife died on October 23, 200, and Nonparty 2, a wife of Nonparty 1, completed the registration of ownership transfer as the principal registration based on the provisional registration on February 10, 206.

C) On December 10, 2006, the Plaintiff entered into a lease agreement with Nonparty 2 on the instant leased building (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) On January 13, 2011, the process of voluntary auction was initiated through the enforcement of the first-class collateral security right against the instant building, and on January 13, 201, Dae Young-gu acquired the instant building.

3) We examine the aforementioned facts in light of the relevant legal principles. Inasmuch as the deposit for lease stipulated in the instant lease agreement does not exceed the standard lease deposit under 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; effective November 1, 2002), the Plaintiff acquired the opposing power from the date of application for business registration pursuant to Article 3(1) of the former Building Lease Protection Act (amended by Act No. 6542, Dec. 29, 2001; hereinafter referred to as the “former Commercial Building Lease Protection Act”) and the proviso to Article 2(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 issue of whether the term of the instant lease agreement expires 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 inheritance, on the ground that the Plaintiff’s lease right to the leased building of this case was 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 assigning this error is with merit.

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 that "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 that where an inheritor does not know of the fact that his/her inherited obligation exceeds his/her inherited property within the period prescribed in paragraph (1) without gross negligence, he/she may grant a qualified acceptance within three months from the date on which he/she becomes aware of the fact that his/her inherited obligation exceeds his/her inherited property (including cases where he/she is deemed to have granted a simple acceptance under subparagraphs 1 and 2 of Article 1026), and Article 1026(2) of the Civil Act provides that "where an inheritor fails to grant 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 that "Where he/she paid the inheritance obligation by gross negligence, he/she could not know that his/her obligation exceeds inherited property within 1010.

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 if the inheritor has given up the inherited property, or has intentionally failed to enter the inherited property on the inventory. Here, the phrase “when an inheritor has not entered in the inventory” means that, at the time of a qualified acceptance, an inheritor does not enter the inherited property in the inventory with the intent to conceal the 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 for not knowing the fact that the inheritance obligation exceeds the inherited property, Defendant 1’s report on fixed acceptance, which was inherited on September 5, 201, which was within three months after he became aware of the fact that the inheritance obligation exceeds the inherited property, is legitimate.

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 judgment.

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) Hyundai Development 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 Hyundai Development and concluded the instant lease agreement with the Plaintiff; and (c) Defendant 2 succeeded to the obligation to return the lease deposit to Nonparty 2; and (d) Defendant 2 succeeded to the obligation to return the lease deposit from Nonparty 2, on the ground that he did not waive his inheritance to Nonparty

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