[1] In fact, where the contract to establish a right to lease on a deposit basis was not concluded but the registration of establishment of a right to lease on a deposit basis was completed according to the agreement between the parties for the purpose of security, whether the right to lease on a deposit basis may

[2] Where chonsegwon has been legally renewed, whether the person having chonsegwon can assert the renewed right against the settlor of chonsegwon or a third party who acquired the subject matter without registration (affirmative)

[3] The case holding that in case where Gap's claim for lease on a deposit basis based on a contract establishing a right to lease on a deposit basis which was null and void because it constitutes a false conspiracy mark, it is reasonable to view that Gap constitutes a bona fide third person who has a new legal interest

[1] In fact, where a contract to establish a right to lease on a deposit has not been concluded but a registration of the establishment of a right to lease on a deposit basis under a lease agreement was made in the name of a tenant with the intention of securing the claim for the return of a deposit under a lease agreement or financing from a financial institution, even if the contract to lease on a deposit is null and void as it constitutes a false agreement, a third party who becomes legally interested based on the legal relationship formed by the contract to lease on a deposit may claim its invalidation only if the third party was aware of such circumstances. In addition, in case where a claim arising out of a legal relationship formed by a false agreement that has conspired with the former is provisionally seized, the provisional attachment authority falls under a third party who was newly interested in the legal relationship formed by a false agreement, and thus, the provisional attachment authority cannot claim the invalidity of the

[2] Where chonsegwon is legally renewed, since it is a change in a real right under the provisions of law, it is not necessary to register the renewal of chonsegwon, and the person having chonsegwon may assert the renewed right against the settlor of chonsegwon or a third party who acquired the subject matter without registration.

[3] The case holding that in case where Gap provisionally attached claims arising from legal relations formed by a contract establishing a right to lease on a deposit basis (right to lease on a deposit basis) which are null and void because it constitutes false representation of conspiracy, as long as the registration of provisional attachment was not cancelled at the time of completion of the registration of establishment of right to lease on a deposit basis, and the title holder of right to lease on a deposit basis who does not have the registration of renewal of right to lease on a deposit basis still occupied and used part

[1] Article 108 (2) of the Civil Act / [2] Article 312 (4) of the Civil Act / [3] Article 108 (2) of the Civil Act

[1] Supreme Court Decision 2006Da58912 Decided March 13, 2008 / [2] Supreme Court Decision 88Meu21029 Decided July 11, 1989 (Gong1989, 1221)

Plaintiff (Law Firm Chang, Attorneys Cho Jong-hwan et al., Counsel for the plaintiff-appellant)

Sectoral Credit Cooperatives (Attorney Park Jong-sung et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2008Na104774 decided April 28, 2009

The judgment below is reversed, and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Where a contract to establish a right to lease on a deposit has not been concluded but a registration of the establishment of a right to lease on a deposit basis under the lease agreement between a lessee and a lessor has been made in the name of a lessee for the purpose of securing the claim for the return of a deposit under the lease agreement or financing from a financial institution, even if the contract to lease on a deposit is null and void as the contract constitutes a false declaration of agreement, a third party who has a new legal interest based on the legal relationship formed by the contract to lease on a deposit basis may claim its invalidation only if the third party was aware of such circumstance (see Supreme Court Decision 2006Da58912, Mar. 13, 2008, etc.). In addition, in case where a claim arising from a legal relation formed by a false declaration that was conspired with the former is a third party who newly had a legal interest based on the false indication, so long as such a third party is bona fide, the provisional attachment authority cannot claim the invalidity of the above false declaration of agreement (Article 108(2)

On the other hand, if chonsegwon is legally renewed (Article 312(4) of the Civil Act), it is a change in the real right under the provisions of law, and thus, it does not require registration for the renewal of chonsegwon, and even without registration, the person having chonsegwon may assert the renewed right against the settlor of chonsegwon or a third party who acquired the subject matter (see, e.g., Supreme Court Decision 88Meu21029, Jul. 11, 1989).

2. A. According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the relevant employment evidence, and determined that the Defendant did not constitute a third party under Article 108(2) of the Civil Act on the ground that the registration of the establishment of the right to lease on a deposit basis of this case was completed on December 31, 2003 prior to the completion of the provisional attachment registration on the registration of the establishment of the right to lease on a deposit basis, and the term under the lease contract or lease contract already expired and the lease deposit was returned in full, and it is difficult to deem that there was a legal relationship in external form to protect the Defendant's trust.

B. However, the lower court’s determination is difficult to accept for the following reasons.

(1) According to the reasoning of the judgment of the first instance as cited by the court below and the records, on November 26, 2001, the plaintiff leased part of the real estate of this case to the non-party for a period of KRW 100 million, KRW 8 million, and KRW 24 months, but at the request of the non-party, the contract for the lease of the lease of the lease of the lease of the lease of the lease of KRW 300 million was prepared and the registration of the lease of this case was completed until the establishment of the lease of the lease of this case. The plaintiff, after concluding the lease contract with the non-party on December 30, 2003, reduced the lease deposit of KRW 70 million, KRW 3.5 million, and the monthly rent of KRW 3.5 million, and on March 3, 2004, the provisional seizure of the lease of the lease of the lease of this case was completed by the non-party on November 25, 2004.

(2) Furthermore, in light of the aforementioned legal principles and the aforementioned factual relations, circumstances such as the obligation to return the deposit money to the settlor of chonsegwon and the obligation to deliver documents necessary for the registration of delivery of the object of chonsegwon and the cancellation of the registration of chonsegwon, etc., the Defendant was in a state of not cancelling the registration of provisional seizure against the right to lease on a deposit basis at the time when the provisional seizure against the right to lease on a deposit basis was completed. Inasmuch as the Nonparty, who is the title holder of the right to lease on a deposit basis, unnecessary registration of renewal of the right to lease on a deposit basis still occupied

(3) Nevertheless, the lower court determined that the Defendant did not constitute a third party under Article 108(2) of the Civil Act on the ground that it is difficult to deem that there exists a legal relationship in appearance, which could protect the Defendant’s trust. In so doing, the lower court erred by misapprehending the legal doctrine on a third party of a false conspiracy, thereby adversely affecting the conclusion of the judgment. The Defendant’s assertion

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)