[1] In a case where a party submits a documentary evidence or a party’s overall observation of a party’s pleading, whether the party’s assertion of a major fact should be deemed as having been made (affirmative)

[2] The probative value of facts acknowledged by the court in other related cases already established in a civil trial

[3] Requirements for public announcement to meet the requirements for opposing power of resident registration under Article 3 (1) of the Housing Lease Protection Act

[4] The case holding that in case where a successful bidder becomes a resident in an auction procedure but has no opposing power, a new lease contract is concluded and a successful bidder is paid, the former tenant shall acquire the opposing power of the right of lease immediately after he acquires the ownership by paying the successful bid price for the pertinent real estate

[1] The determination of the facts that the parties did not assert on the major facts constituting the legal requirements is in violation of the principle of pleading. However, not only where the parties' assertion on the major facts is clearly made, but also where the parties' presentation of documentary evidence to the court and statement the purport of proof by presenting documentary evidence to the court, or where it can be deemed that the parties' arguments are made indirectly by observing the parties' arguments as a whole, it shall be deemed that there exists an assertion on the major facts.

[2] In a civil trial, the facts acknowledged by the court in other related cases which have already been established shall be the most reliable evidence unless there are other special circumstances, but it shall not be bound by the facts acknowledged by the court.

[3] In Article 3 (1) of the Housing Lease Protection Act, the resident registration, which is defined as the requirement for opposing power along with the delivery of a house, is prepared as a public announcement method that enables a third party to clearly recognize the existence of the 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 the right of lease as the resident registration. Therefore, it is insufficient to say that the public announcement method that can satisfy the requirements for opposing power of resident registration is merely a formal resident registration for the purpose of the public announcement. It should be sufficient to view that the relationship of possession indicated by the resident registration is the possession that the right of lease is acting as a intermediary for the right of lease.

[4] The case holding that, in case where the successful bidder becomes a resident in an auction procedure but has no opposing power but a new lease contract is concluded and a successful bidder is paid, the former tenant's resident registration has functioned to publicly announce the lease relationship between the successful bidder and the former tenant before the successful bidder acquires ownership, and thus the former tenant acquires the opposing power of the lease immediately after the successful bidder pays the successful bid price for the pertinent real estate

[1] Article 203 of the Civil Procedure Act/ [2] Article 202 of the Civil Procedure Act/ [3] Article 3 (1) of the Housing Lease Protection Act/ [4] Article 3 (1) of the Housing Lease Protection Act

[1] Supreme Court Decision 94Da16083 decided Apr. 28, 1995 (Gong1995Sang, 1958), Supreme Court Decision 98Da46167 decided Jul. 27, 199 (Gong1999Ha, 1750), Supreme Court Decision 200Da70804 decided Feb. 23, 2001, Supreme Court Decision 200Da6254 decided Jun. 28, 2002 (Gong2002Ha, 1779) / [2] Supreme Court Decision 87Da2370 decided Nov. 8, 198 (Gong198, 1530), Supreme Court Decision 200Da39539 decided Jun. 29, 2005 (Gong198Da98399 decided Jun. 19, 209)

Plaintiff (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Defendant

Seoul High Court Decision 200Na14488 decided May 1, 200

Seoul District Court Decision 2001Na43839, 43846 delivered on June 5, 2002

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff) and the assignee.

1. The facts of the judgment below

A. The real estate of this case was originally owned by Nonparty 1, and the registration of establishment of the first place was completed on July 31, 1995 in the name of the National Agricultural Cooperative Federation (hereinafter referred to as the "Agricultural Cooperative Federation"). On March 19, 1994, the Plaintiff (Counterclaim Defendant; hereinafter referred to as the "Plaintiff") paid the lease deposit amount of KRW 35 million from Nonparty 1 on March 19, 1994, and thereafter occupied the part of this case, but the fixed date of the lease contract was completed on October 10, 1994, and the move-in report was completed on July 3, 1996.

B. On February 21, 1997, at the request of the above Agricultural Cooperatives, the auction procedure for real estate was commenced on February 21, 1997 by the Seoul District Court 97ta, 3860 (hereinafter referred to as the "first auction procedure"). Nonparty 2, the mother of Nonparty 1, at the above first auction procedure, was awarded the real estate of this case on July 28, 1997 and paid the price in full on October 9, 1997. After completing the registration of transfer of ownership under its name on October 10, 1997, the registration of creation of mortgage (hereinafter referred to as the "registration of creation of mortgage of this case") was completed on the same day with the debtor, the maximum debt amount of 156,000,000 won, and Korea Mutual Savings and Finance Company, Korea Co., Ltd. (hereinafter referred to as "Korea Mutual and Finance Company").

C. On January 11, 199, the auction procedure for real estate rent (hereinafter “the second auction procedure”) was commenced at the same court around 99 another and around 1059 on the real estate of this case. Nonparty 3 was awarded a bid at the above second auction procedure and completed the registration of ownership transfer in its name after fully paying the price on May 18, 200 and completed the registration of ownership transfer in the name, the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) and the intervenors.

2. Judgment on the grounds of appeal

A. As to the establishment of a lease agreement

Recognizing the fact that a party did not assert any material fact that constitutes a legal requisite fact, it shall be deemed to be in violation of the principle of pleading. However, not only where the party’s assertion on a material fact is clearly made, but also where the party’s assertion on a material fact may be deemed to have asserted the fact indicated in the documentary evidence or to have made an indirect assertion by presenting documentary evidence to the court and by making a statement of the purport of proof, it shall be deemed that there exists an assertion on a material fact (see, e.g., Supreme Court Decisions 94Da16083, Apr. 28, 1995; 98Da46167, Jul. 27, 1999; 200Da70804, Feb. 23, 2001; 2000Da6254, Jun. 28, 2002).

According to the reasoning of the judgment below, the court below acknowledged that the lease agreement (No. 1 and No. 3-2) entered into between the plaintiff and the non-party 2 was not entered into on October 8, 1997, and that there was room for retroactive preparation of the above date. However, the non-party 2 was not only the mother of the non-party 1, but also the lessee of the real estate. The non-party 2 did not receive the deposit money directly from the non-party 1. The non-party 2, who was the plaintiff's joint surety on January 23, 1996, did not have any legal principle regarding the non-party 4's transfer of the above real estate under the name of the non-party 1 and the non-party 4's non-party 1 and the non-party 4's transfer of the right to collateral security to the non-party 1 and the non-party 2's transfer of the right to collateral security to the non-party 1 and the non-party 4's transfer of the right to collateral security.

The ground of appeal on this point is without merit.

In addition, the facts acknowledged by the court in other related cases which have been established in the civil trial are the most flexible evidence, unless there are other special circumstances, but the facts acknowledged by the court are not bound by the facts (see, e.g., Supreme Court Decisions 87Da2370, Nov. 8, 1988; 95Da45286, Jun. 11, 1996). Furthermore, the judgment cited in the Reasons for Appeal (No. 22) is different from the case in this case, and compared with the reasons for the judgment and the contents of the judgment of this case, it cannot be said that the recognition of the establishment of the lease contract of this case without citing the judgment cited in the Grounds for Appeal by the court below is against the rules of evidence.

B. On the time of acquisition of the opposing power of the housing lease

Article 3 (1) of the Housing Lease Protection Act provides that the requirements for opposing power along with the delivery of a house shall be established as a public announcement method that enables a third party to clearly recognize the existence of the right of lease for the purpose of transaction safety. Whether the validity of a public announcement of a lease is determined depending on which the third party can recognize the existence of the right of lease as the resident registration. Thus, it is insufficient to say that a public announcement method that can satisfy the requirements for opposing power of resident registration is simply a formal resident registration for a third party to be made. The extent that the third party can recognize that the possession of the right of lease indicated by the resident registration is the possession of the right of lease (see, e.g., Supreme Court Decisions 9Da32939, Apr. 23, 199; 9Da59306, Feb. 11, 2000; 200Da580263, Jan. 30, 2001).

According to the facts duly established by the court below, since the non-party 2 had been able to recognize that the non-party 2 had resided in the housing of this case from before he paid the successful bid price for the real estate of this case to the non-party 2, who was not the owner on the resident registration of this case, it was possessed by the non-party 2 and the non-party 2 and the plaintiff have the function of disclosing the lease relationship between the non-party 2 and the plaintiff since the non-party 2 had the ownership right before the non-party 2 acquired the ownership right. Therefore, the plaintiff acquired the opposing power of the above right of lease as soon as he acquired the ownership by paying the successful bid price for the real estate of this case (see Supreme Court Decision 200Da58026, 58033, Jan. 30, 2001). Thus, since the root of this case in the name of the non-party 2 auction procedure of this case had been completed after the plaintiff acquired the above opposing power of the plaintiff, the plaintiff can oppose

The Supreme Court precedents cited in the grounds of appeal are inappropriate to invoke the case differently from the case of this case.

On the other hand, the court below's decision that the time of acquisition of the opposing power of the above right of lease is erroneous on the day following the acquisition date of the above right of lease is justified. However, the decision that the plaintiff can oppose the non-party 3 and the defendant and the intervenor, who is the successful bidder in the above auction procedure, as a result, is justified. Therefore, even if there were errors as seen above in the judgment of the court below, this does not affect the conclusion of the judgment, and therefore, the judgment of the court below is not erroneous in the misapprehension of the legal principles

C. As to the amount of lease deposits to be refunded by the Intervenor

Although the intervenor deposited KRW 17,500,000 out of KRW 35 million with the plaintiff, the court below held that the intervenor was liable to pay the above KRW 35,00,000 to the plaintiff. The records show that the plaintiff committed an error in failing to exhaust all necessary deliberations. The plaintiff was paid KRW 17,496,015 in the distribution procedure for the provisional seizure deposit funds of Seoul District Court Decision 2001Ma3202, Oct. 25, 2001 but did not deliver the real estate, and did not receive the above dividends at present. However, the fact that the plaintiff received part of the deposit as a final payment due to the above distribution is a matter of assertion and admission, and the fact that the plaintiff received part of the deposit as a final payment in the fact-finding court is not erroneous in the incomplete deliberation of the court below.

The ground of appeal on this point is without merit.

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)